CrimProf Blog

Hopwood on Improving Federal Sentencing

Shon Hopwood (Georgetown University Law Center) has posted Improving Federal Sentencing (University of Missouri-Kansas City Law Review, Vol. 87, No. 79, 2018) on SSRN. Here is the abstract:

 

Even after the Supreme Court declared the U.S. Sentencing Guidelines unconstitutional and advisory only, federal judges continue to impose advisory Guidelines sentences in a large number of sentencing proceedings. Judges continue to employ the Guidelines, even though the Guidelines are overly punitive and even though the U.S. Sentencing Commission does not take into consideration the thousands of collateral consequences that those convicted of federal felonies face after serving a period of incarceration. Why? This essay explains why federal sentencing judges should discontinue such heavy reliance on the advisory Sentencing Guidelines ranges.

Brown on Bruce Jacob's "Other" Supreme Court Case

Mark R. Brown (Capital University) has posted Bruce’s ‘Other’ Supreme Court Case (Stetson Law Review, Vol. 48, 2019) on SSRN. Here is the abstract:

 

Bruce Jacob, former Dean of the Stetson University College of Law and long-time faculty member of various institutions, is famous for having argued Gideon v. Wainwright before the Supreme Court. What many do not know, however, is that Bruce argued a perhaps equally important case to the Warren Court five years later. And this time he won. The case, Kaufman v. United States, established that inmates, whether federal or state, may use federal habeas corpus to challenge Fourth Amendment violations. Unfortunately, this result was short-lived. Within ten years it had been replaced by another Supreme Court decision, Stone v. Powell, put in place by a new and more conservative Burger Court. This short piece describes Bruce's efforts in the Kaufman case, the Court's holding, its legacy, and the career of the story's deuteragonist (before and after prison), Harold Kaufman.

Bagaric & McCord on Decarcerating America

Mirko Bagaric and Daniel McCord (Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School and Northwestern University, School of Law, Students) have posted Decarcerating America: The Opportunistic Overlap Between Theory and (Mainly State) Sentencing Practise As a Pathway to Meaningful Reform (Buffalo Law Review, Vol 67, 2019) on SSRN. Here is the abstract:

 

Criminals engender no community sympathy and have no political capital. This is part of the reason that the United States has the highest prison population on earth, and by a considerable margin. Incarceration levels grew four-fold over the past forty years. Despite this, America is now experiencing an unprecedented phenomenon whereby many states are now simultaneously implementing measures to reduce prison numbers. The unusual aspect of this is that the response is not coordinated; nor is it consistent in its approach, but the movement is unmistakable. This ground up approach to reducing prison numbers suffers from the misgiving that it is an ineffective solution to a complex issue. While prison numbers are reducing, it is at a glacial rate. Pursuant to current trends, it would take five decades to reach incarceration levels that are in keeping with historical levels in the United States, and which are in line with prison numbers in most other countries.

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Jefferson-Bullock on Releasing Elderly Offenders

Jalila Jefferson-Bullock (Duquesne University - School of Law) has posted Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders (79 Ohio State Law Journal 937-990 (2018)) on SSRN. Here is the abstract:

 

Sentencing reform appears resurrected. Following a brief hiatus and an expectedly unwelcoming recent federal response, sentencing reform is again reemerging as a major initiative. Congress and the several states are poised to immediately accomplish major reform of the United States criminal sentencing structure. Proposals that would, among other initiatives, drastically reduce criminal sentences, restore rehabilitative programs to inmates, generate sentencing parity, normalize probation for low-level offenses, and shrink the overall prison footprint are ambling through various legislative processes throughout the country. Though groundbreaking and certainly welcome, these reforms largely ignore the special needs of the imprisoned elderly. One of the most foreseeable, yet ironically ignored, consequences of 1980's and 1990's harsh sentencing laws, is the dramatic upsurge in prison population through the predictable process of human aging. Coined the prison “silver tsunami” phenomenon, surging numbers of elderly inmates raises significant moral, health, and fiscal implications deserving keen scrutiny. It is imperative, then, that any overhaul of criminal sentencing focuses on how to meaningfully address the graying of America's prisons.

Kadane & Koehler on Reporting Fingerprint Evidence

Joseph (Jay) B. Kadane and Jonathan J. Koehler (Carngeie Mellon University and Northwestern University - Pritzker School of Law) have posted Certainty and Uncertainty in Reporting Fingerprint Evidence (Daedalus, 147, 119-134) on SSRN. Here is the abstract:

 

Everyone knows that fingerprint evidence can be extremely incriminating. What is less clear is whether the way that a fingerprint examiner describes that evidence influences the weight lay jurors assign to it. This essay describes an experiment testing how lay people respond to different presentations of fingerprint evidence in a hypothetical criminal case. We find that people attach more weight to the evidence when the fingerprint examiner indicates that he believes or knows that the defendant is the source of the print. When the examiner offers a weaker, but more scientifically justifiable, conclusion, the evidence is given less weight. However, people do not value the evidence any more or less when the examiner uses very strong language to indicate that the defendant is the source of the print versus weaker source identification language. We also find that cross-examination designed to highlight weaknesses in the fingerprint evidence has no impact regardless of which type of conclusion the examiner offers. We conclude by considering implications for ongoing reform efforts.

Kadens on Cheating

Emily Kadens (Northwestern University School of Law) has posted Cheating Pays (Columbia Law Review, Vol. 119, No. 2, 2019) on SSRN. Here is the abstract:

 

Common private-ordering theories predict that merchants have an incentive to act honestly because if they do not, they will get a bad reputation and their future businesses will suffer. In these theories, cheating is cheating whether the cheat is big or small. But while reputa­tion-based private ordering may constrain the big cheat, it does not necessarily constrain the small cheat because of the difficulty in discover­ing certain types of low-level cheating and the consequent failure of the disciplining power of reputation. Yet the small cheat presents a signifi­cant challenge to modern contracting, both between businesses and in the contracts of adhesion imposed on consumers. To encourage private law scholars to address the unique governance challenges posed by low-level cheating, this Essay describes the conditions under which low-level cheating can flourish and become widespread. It demonstrates this so-called “Cheating Pays” scenario using a historical case study in which a seventeenth-century London grocer, trading under precisely those condi­tions that private-ordering theories predict will incentivize honesty, not only cheated extensively but also successfully remained in business after having been caught and publicly punished. Identifying the scenarios in which cheating pays has implications for how firms use contracts and how consumers might use the courts to try to reduce opportunistic behavior.

"Michigan attorney general launches wrongful conviction unit"

From The Detroit News, via the NACDL news scan. In part:

Two years after a record number of exonerations for wrongful convictions in Michigan, the state Attorney General's Office on Wednesday announced the formation of a new Conviction Integrity Unit that will look into claims of innocence.

. . .

Most of the exonerations were in Wayne County in cases involving Detroit police. Innocence advocates say the wrongful convictions are part of systemic problems in Detroit's police department that were so pervasive in the 1990s and early 2000s, the federal government entered into a consent judgment with the city to avoid lawsuits alleging mistreatment of citizens and excessive use of force.

"ACLU files class action lawsuit in Michigan over broken bail system"

From Jurist:

The American Civil Liberties Union of Michigan filed a class action suit against magistrates, a chief judge and the county sheriff who preside over arraignments in Detroit, alleging that their broken bail system discriminates against the poor who cannot afford to pay the amounts.

With the high rates of poverty impacting Detroit, the ACLU alleges more and more citizens are being unfairly impacted by the bail system who are picked up on minor offenses. The lawsuit claims that there are right to counsel violations because most clients do not have an attorney when bail is set. The class action attempts to narrow who can be jailed while awaiting conviction and speeds up detention hearings, so citizens are not being detained for long periods of time for failing to post bail.

Dan-Cohen on The (Im)morality of the Death Penalty

Meir Dan-Cohen (University of California, Berkeley - School of Law) has posted On the (Im)morality of the Death Penalty (BERKELEY JOURNAL OF CRIMINAL LAW, Vol. 23, 2018) on SSRN. Here is the abstract:

 

It is generally agreed that to be morally, and in the US, constitutionally, permissible, the death penalty must accord with human dignity. I argue that it does not. To this end, I sketch a conception of dignity, embedded in Kantian moral theory, which helps assess when violations of dignity take place, as well as appreciate the high moral stakes such violations involve.

Yaroshefsky et al. on Movement Lawyering

Ellen Yaroshefsky, Purvi Shah, Meena Jagannath, Sameer M. Ashar, Bruce A. Green, Marci Seville, Paul R. Tremblay, Baher Azmy, Scott L. Cummings, Michael Haber, Susan Carle, Sarah Leberstein, Katherine R. Kruse and Mary Yanik (Hofstra University - Maurice A. Deane School of Law, affiliation not provided to SSRN, Community Justice Project, Inc., UCLA School of Law - UCLA School of Law, Fordham University School of Law, Golden Gate University School of Law, Boston College - Law School, Seton Hall University - School of Law, University of California, Los Angeles (UCLA) - School of Law, Hofstra University - Maurice A. Deane School of Law, American University Washington College of Law, affiliation not provided to SSRN, Mitchell Hamline School of Law and affiliation not provided to SSRN) have posted Movement Lawyering Roundtable Symposium (Hofstra Law Review, Vol. 47, 2018) on SSRN. Here is the abstract:

 

This symposium presents case studies of the often difficult ethical and tactical issues confronted by lawyers for social justice movements. These case studies were developed by the pairing of movement lawyers with legal ethicists and enriched by the discussions at the Movement Lawyering Ethics Roundtable. They seek to provide guidance to lawyers facing these recurrent issues. This issue also includes an essay entitled "rebuilding the Ethical Compass of the Law" and reading guides with selected bibliographies.

O'Hear on Managing Violent Recidivism and Lessons from Sexual Offenses

Michael M. O'Hear (Marquette University - Law School) has posted Managing the Risk of Violent Recidivism: Lessons From Legal Responses to Sexual Offenses (Boston University Law Review, Vol. 100, Forthcoming) on SSRN. Here is the abstract:

 

Over the course of a generation, American legislatures have quietly adopted an intricate web of measures intended to reduce the risk that individuals who have been convicted of violent crimes will commit new violent crimes. These measures include, for instance, sentencing and corrections laws that categorically target “violent offenses” and “violent offenders” for harsher treatment, prohibitions on pretrial diversion opportunities, employment restrictions, and long-term offender registration requirements. Such measures parallel a generally similar, but more closely studied, set of laws that aim to reduce sexual recidivism. 

This article provides an overview of the literature on sexual-recidivism measures, especially sexual offender registration and notification (“SORN”) and civil commitment for sexually violent predators (“SVPs”), and considers lessons that may be drawn for the improved management of violent-recidivism risk.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims Jessica Aycock Texas Tech University School of Law Date Posted: 14 Feb 2019	144
2.	Making Federalism Great Again: How the Trump Administration's Attack on Sanctuary Cities Unintentionally Strengthened Judicial Protection for State Autonomy Ilya Somin George Mason University - Antonin Scalia Law School, Faculty Date Posted: 07 Mar 2019 [3rd last week	110
3.	Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against Executing Juveniles From 18 to 21 John H. Blume, Hannah Freedman, Lindsey Vann and Amelia Hritz Cornell Law School, Independent, Justice 360 and Cornell University - Law School Date Posted: 25 Mar 2019 [2nd last week]	109
4.	Inheritance Forgery Reid K. Weisbord and David Horton Rutgers Law School and University of California, Davis - School of Law Date Posted: 08 Feb 2019	98
5.	James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Laws' John Mikhail Georgetown University Law Center Date Posted: 25 Mar 2019	97
6.	Limiting Identity in Criminal Law Mihailis Diamantis University of Iowa - College of Law Date Posted: 27 Mar 2019 [9th last week]	82
7.	Mitigations: The Forgotten Side of the Proportionality Principle Paul H. Robinson University of Pennsylvania Law School Date Posted: 01 Mar 2019 [8th last week]	68
8.	Proportionality Theory in Punishment Philosophy: Fated for the Dustbin of Otiosity? Michael Tonry University of Minnesota - Twin Cities - School of Law Date Posted: 25 Feb 2019 [10th last week]	62
9.	Sorting Out White-Collar Crime Miriam H. Baer Brooklyn Law School Date Posted: 27 Mar 2019 [new to top ten]	58
10.	Immigrant Sanctuary as the 'Old Normal': A Brief History of Police Federalism Trevor George Gardner University of Washington - School of Law Date Posted: 27 Jan 2019 [new to top ten]	54

Next week's criminal law/procedure arguments

Issue summaries are from Scotusblog, which also links to papers:

Wednesday

• U.S. v. Davis: Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.
• McDonough v. Smith: Whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the 2nd Circuit held below.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail Aurelie Ouss and Megan T. Stevenson University of Pennsylvania and George Mason University - Antonin Scalia Law School, Faculty Date Posted: 25 Feb 2019	661
2.	Feigned Consensus: Usurping the Law in Shaken Baby Syndrome/Abusive Head Trauma Prosecutions Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, MD, Julie Mack, David A. Moran, Barry Scheck and Thomas Bohan University of Wisconsin Law School, Seton Hall University School of Law, Stanford University - Pediatric Radiology and Neuroradiology, Pennsylvania State University - Penn State Hershey Medical Center, University of Michigan Law School, Professor of Law, Cardozo Law School, Co-Director, Innocence Project and American Academy of Forensic Sciences Date Posted: 05 Feb 2019	518
3.	Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims Jessica Aycock Texas Tech University School of Law Date Posted: 14 Feb 2019 [4th last week]	144
4.	Juvenile Life Without Parole in North Carolina Ben Finholt, Brandon L. Garrett, Karima Modjadidi and Kristen Renberg NC Prisoner Legal Services, Duke University School of Law, Duke University School of Law and Duke University School of Law Date Posted: 19 Feb 2019 [5th last week]	142
5.	Probable Cause Pluralism Andrew Manuel Crespo Harvard Law School Date Posted: 19 Mar 2019 [6th last week]	135
6.	Theories of Prosecution Jeffrey Bellin William & Mary Law School Date Posted: 19 Mar 2019 [9th last week]	122
7.	An Empirical Study of Terrorism Charges and Terrorism Trials in Canada between September 2001 and September 2018 Michael Nesbitt University of Calgary, Faculty of Law Date Posted: 07 Feb 2019 [8th last week]	117
8.	Afrofuturism, Critical Race Theory, and Policing in the Year 2044 I. Bennett Capers Brooklyn Law School Date Posted: 11 Feb 2019 [10th last week]	102
9.	'A World of Steel-Eyed Death': An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty Michael L. Perlin, Talia Roitberg Harmon and Sarah Chatt New York Law School, Niagara University and Spalding University, College of Education Date Posted: 12 Feb 2019 [new to top ten]	88
10.	Recording as Heckling Scott Skinner-Thompson University of Colorado Law School Date Posted: 11 Mar 2019 [new to top ten]	79

"How Do We Know If Prosecutors Are Doing A Good Job?"

Jeffrey Bellin (William & Mary) has this piece at Law360. In part:

Sometimes prosecutors get criticized because they deserve it. Other times, the criticism comes from the fact that the American criminal justice system is flawed and complex, and prosecutors are its most misunderstood component. Even among experts, there is little agreement about how we should evaluate prosecutor performance.

The traditional view is that prosecutors are dull public servants, with little role in making policy. Their job is to enforce the law. Mueller is an example of an old-school, “enforce the law” prosecutor. If he talked to the media (old-school prosecutors don’t), he would dismiss all the fuss, saying that his team focused on its assigned task, pausing only to address any law-breaking it uncovered along the way. For those on the other side of the political aisle, Jeff Sessions is the model. While progressive prosecutors rush to dismiss marijuana cases, Sessions, our former attorney general, wanted to federally prosecute marijuana offenses even in states that decriminalized the drug.

But the prosecutors-enforce-the-law narrative has always been too simplistic.

Parr on Searches of Makeshift Dwellings

Evanie Parr (Seattle University, School of Law, Students) has posted When a Tent Is Your Castle: Constitutional Protection Against Unreasonable Searches of Makeshift Dwellings of Unhoused Persons (Seattle University Law Review, Vol. 42, No. 2, 2019) on SSRN. Here is the abstract:

 

This Note will argue that all jurisdictions should follow the Washington State Court of Appeals, Division II in validating makeshift dwellings used by people experiencing homelessness as spaces protected from unwarranted police intrusions by shifting evaluations of “reasonable expectations of privacy” to a more equitable standard that appreciates the realities of economic disparity. This approach to constitutional protections against unreasonable searches and seizures is imperative to protect the rights of people experiencing homelessness, given that such individuals are regularly subjected to invasions of privacy and heightened exposure to the criminal justice system.

O'Hear on Consequences of "Violent" Crimes

Michael M. O'Hear (Marquette University - Law School) has posted Third-Class Citizenship: The Escalating Legal Consequences of Committing a 'Violent' Crime (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

 

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions — and sometimes even just charges — for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification from employment in certain fields, and a loss of parental rights, among many other “collateral consequences.” While a criminal conviction of any sort relegates a person to a kind of second-class citizenship in the United States, a conviction for a violent crime increasingly seems even more momentous — pushing the person into a veritable third-class citizenship.

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Robinson on A Sharia-based Criminal Code

Paul H. Robinson (University of Pennsylvania Law School) has posted Codifying a Sharia-based Criminal Law in Developing Muslim Countries on SSRN. Here is the abstract:

 

This paper reproduces presentations made at the University of Tehran in March 2019 as part of the opening and closing remarks for a Conference on Criminal Law Development in Muslim-Majority Countries. The opening remarks discuss the challenges of codifying a Shari’a-based criminal code, drawing primarily from the experiences of Professor Robinson in directing codification projects in Somalia and the Maldives. The closing remarks apply many of those lessons to the situation currently existing in Iran. Included is a discussion of the implications for Muslim countries of Robinson’s social psychology work on the power of social influence and internalized norms that comes from criminal law’s tracking the shared judgments of justice of the community – “empirical desert” (included is a discussion in the closing remarks of the power of Tom Tyler’s “legitimacy” that is derived from fair and professional adjudication procedures).

Logan & Linford on Contracting for Fourth Amendment Privacy Online

Wayne A. Logan and Jake Linford (Florida State University - College of Law and Florida State University - College of Law) have posted Contracting for Fourth Amendment Privacy Online (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

 

For decades, the Supreme Court has applied what is known as the third party doctrine, which allows police, acting without a warrant, to secure information that an individual has voluntarily revealed to others. The doctrine has long been criticized by scholars and only narrowly escaped its formal demise last Term in Carpenter v. United States, when the Supreme Court deemed it inapplicable to geo-locational data possessed by cell phone providers (third parties).

While the merits of the third party doctrine continue to be debated, an important development has escaped notice: state and lower federal courts have been hollowing it out from below. They have done so when deciding Fourth Amendment privacy claims brought by individuals who have shared their information online, basing their decisions in significant part on users’ privacy settings and terms of service agreements. As the cases make clear, mere exposure of information to others, or the theoretical possibility of doing so, does not necessarily negate the privacy expectations of users, as robust application of the third party doctrine would require. Increasingly, the dispositive question of the third party doctrine, whether one “voluntarily” exposes information to another, is assuming new meaning in the Internet Age, based on the application of contract law principles.

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Powell & McNeal on Symposium on Structural Inequality in Policing

Cedric Merlin Powell and Laura McNeal (University of Louisville - Louis D. Brandeis School of Law and University of Louisville-Louis D. Brandeis School of Law) have posted Dismantling Structural Inequality: Lock Ups, Systemic Chokeholds, and Race-Based Policing--A Symposium Summary on SSRN. Here is the abstract:

 

Foregrounding Paul Butler's book Chokehold, James Forman Jr.'s Locking Up Our Own, and Angela J. Davis' Policing the Black Man, this symposium offers a wide ranging, comprehensive, and critical discussion of structural inequality and its devastating manifestations in the criminal justice system. Exploring three interlocking oppressive features of the criminal justice system, this symposium unpacks structural inequality by analyzing: (i) the societal presumption of Black criminality and violence, and how this rationalizes and reinforces a structural chokehold on African-Americans; (ii) the complex systemic relationships between Black leadership, crime policy, and decision-making leading to disproportionate incarceration rates for African-American males; and (iii) systemic practices from racial profiling to a flawed grand jury system that insulates unjustified violence and police misconduct from scrutiny at trial. The symposium integrates several distinct conceptual approaches to theorizing the disproportionate impact of the criminal justice system.