CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, February 6, 2020

Bloch-Wehba on Transparency After Carpenter

Hannah Bloch-Wehba (Drexel University Thomas R. Kline School of Law) has posted Transparency After Carpenter (Washburn Law Journal, Forthcoming) on SSRN. Here is the abstract:
This brief invited response to Professor Matthew Tokson’s Foulston-Siefkin lecture on the Supreme Court's decision in Carpenter v. United States makes two contributions. First, I highlight the social, political, and economic factors at play in the Carpenter decision. The Carpenter Court recognized, in particular, that digital surveillance implicates the rights of more than just criminal suspects: it poses unique and unappreciated threats to public governance of policing. The decision, I argue, reflects longstanding preoccupations in Fourth Amendment decisions with protecting the “public” — particularly innocent third parties — from intrusive and baseless investigations. In so doing, I situate Professor Tokson’s piece alongside other scholarship exploring how Fourth Amendment doctrine protects a broader set of interests than simply those of the criminal defendant or suspect.

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February 6, 2020 | Permalink | Comments (0)

Gur-Arye on Beccaria on Rights

Miriam Gur-Arye (Hebrew University of Jerusalem - Faculty of Law) has posted Human Rights and Criminal Law: From Beccaria's On Crimes and Punishments to Modern Criminal Law (Re-Reading Beccaria (Antje du bois-Pedain and Shachar Eldar eds., Oxford: Hart Publishing), 2020, Forthcoming) on SSRN. Here is the abstract:
Beccaria perceived his Essay On Crimes and Punishments as a plea for the "interests of humanity" against "the savagery and the disorderliness of the procedures of criminal justice". In arguing for a humane criminal law Beccaria relates to the "rights of men". The role Beccaria attaches to the "rights of mankind" resembles the role of human rights in modern criminal law - such as the right of due process and the right not to be subjected to cruel inhumane and degrading punishment - which subjects modern criminal law to constitutional constraints. In this Chapter I will discuss the importance attached by Beccaria to the rights of mankind in different contexts of the criminal law and will evaluate the relevance of Beccaria's discussions of these rights to modern criminal law. In doing so, I will focus on three different contexts discussed by Beccaria: the rule of law, torture and the crimes of adultery and sodomy. In the concluding Part, I will point out some of the lessons that modern criminal law may learn from Beccaria's discussion in these contexts.

February 6, 2020 | Permalink | Comments (0)

Green on Criminalizing Sex

Stuart P. Green (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Criminalizing Sex: A Unified Liberal Theory (Book Introduction) (Forthcoming, Oxford University Press (February 2020)) on SSRN. Here is the abstract:
Starting in the latter part of the 20th century, the law of sexual offenses, especially in the West, began to reflect a striking divergence. On the one hand, the law became significantly more punitive in its approach to sexual conduct that is nonconsensual, as evidenced by a major expansion in the definition of rape and sexual assault, and the creation of new offenses like sex trafficking, child grooming, and revenge porn. On the other hand, it became markedly more permissive in how it dealt with conduct that is consensual, a trend that can be seen, for example, in the legalization or decriminalization of sodomy, adultery, and adult pornography. This book explores the conceptual and normative implications of this divergence.

At the heart of the book is a consideration of a deeply contested question: How should a liberal system of criminal law adequately protect individuals in their right not to be subjected to sexual contact against their will, while also safeguarding their right to engage in (private consensual) sexual conduct in which they do wish to participate?

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February 6, 2020 | Permalink | Comments (0)

Wednesday, February 5, 2020

Shestak on Prosecutorial Supervision in Russia

Viktor Shestak (Moscow State Institute of International Relations (MGIMO)) has posted On the Organization of Prosecutorial Supervision in Russia in Criminal Prosecution ((2019) Organization of the work of the military prosecutor's offices of the Russian Federation, the People's Republic of China and the Republic of Uzbekistan: materials of the International round-table) on SSRN. Here is the abstract:
The relevance of the study of the problem of determining the place of prosecutors in the system of state criminal prosecution authorities is determined, firstly, by ongoing scientific discussions and the lack of a common opinion concerning the nature of the prosecutor’s office, the place and the role of prosecutor’s supervision in the government’s activities, and secondly, by the reform of the judicial system in Russia, which predetermined structural changes in the public administration system and the structure of state criminal prosecution authorities.

February 5, 2020 | Permalink | Comments (0)

Couture on Dual-Regulatory, Multi-Enforcer Regimes

Wendy Gerwick Couture (University of Idaho College of Law) has posted Principles for State Prosecution of Securities Crime in a Dual-Regulatory, Multi-Enforcer Regime (University of Pennsylvania Journal of Business Law, Vol. 22, No. 1, 2019) on SSRN. Here is the abstract:
This article proposes principles for the exercise of prosecutorial discretion when prosecuting securities crime under state law. Securities transactions in the United States are subject to a dual-regulatory, multi-enforcer regime. Securities are dually regulated by the federal government and the states, with each regulatory scheme including both civil and criminal enforcement provisions. Those laws are multi-enforced at each level by a regulator, private parties, and prosecutors. And yet, the role of state prosecution of securities crime within this regime is undertheorized, and there is little guidance for state prosecutors about how their prosecutorial decisions affect this regime. This article, drawing from the goals of prosecuting securities crime and the implications of this complex regime, provides guidance on states’ exercise of prosecutorial discretion therein.

February 5, 2020 | Permalink | Comments (0)

Colgan & McLean on Financial Hardship and Excessive Fines

Beth A. Colgan and Nicholas McLean (University of California, Los Angeles (UCLA) - School of Law and University of Hawaii - William S. Richardson School of Law) have posted Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs (The Yale Law Journal Forum (2020)) on SSRN. Here is the abstract:
In the wake of the Supreme Court’s decision in Timbs v. Indiana—which held that the Fourteenth Amendment incorporates against the states the Eighth Amendment’s ban on the imposition of “excessive fines”—it is likely that state and lower federal courts around the nation will be called upon to further develop Excessive Fines Clause doctrine. The Court’s historical exegesis in its Timbs opinion, as well as aspects of existing Eighth Amendment doctrine, support an analytical framework under which courts would look to the effects of property forfeiture on individuals and their families—in particular, the infliction of financial hardship—when assessing the severity of a forfeiture in the proportionality review context. In this Essay, we sketch the outlines of a forfeitures jurisprudence that would take into account the ways that property deprivations may restrict employment and educational access, interfere with the ability to meet basic needs (including food, shelter, and medical care), create family and social instability, and impede the ability to satisfy legal obligations.

February 5, 2020 | Permalink | Comments (0)

Tuesday, February 4, 2020

Gormley et al. on Political Affiliation and Corporate Prosecutions

Todd A. GormleyMahsa Kaviani and Hosein Maleki (Washington University in St. Louis, Temple University - Department of Finance and Temple University, Fox School of Business) have posted Are Judges Like Umpires? Political Affiliation and Corporate Prosecutions on SSRN. Here is the abstract:
Using the random assignment of judges to corporate criminal cases, we document that, on average, judges appointed by a Democrat president impose larger monetary damages for crimes that Democrats are more likely to view as important (i.e., violations of environmental and labor regulations) while Republican-appointed judges impose larger fines for crimes that Republicans are more likely to view as important (i.e., the hiring of illegal immigrants). These differences are amplified during time periods of greater political partisanship and are robust to controlling for other judicial characteristics (e.g., age, race, and gender). There is no evidence, however, that judges’ political affiliations are associated with decisions on guilt. The findings suggest that shifts in judicial political affiliations and increased political polarization have the potential to affect firms’ investment and hiring decisions.

February 4, 2020 | Permalink | Comments (0)

Vollmer on Tipping and Securities and Wire Fraud

Andrew N. Vollmer (Mercatus Center at George Mason University) has posted The Second Circuit’s Blaszczak Decision: Dirks Besieged on SSRN. Here is the abstract:
A major issue in United States v. Blaszczak, 2019 WL 7289753 (2d Cir.), was whether the government needed to prove the elements of a Rule 10b-5 tipping violation from Dirks v. SEC, 463 U.S. 646 (1983), when charging a tipper and tippees with the crimes of wire fraud and securities fraud in Title 18. The Second Circuit’s answer was no. The elements for an insider trading violation based on tipping were not the same for Title 18 fraud and Rule 10b-5. In particular, the government did not need to prove that an insider received a personal benefit in exchange for disclosing material, non-public information to an outsider (*8-9).

The majority in Blasczcak committed serious legal errors in concluding that the Dirks test for tipping does not apply to the Title 18 frauds.

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February 4, 2020 | Permalink | Comments (0)

Resnick on The Eighth Amendment and Ruination

Judith Resnik (Yale University - Law School) has posted (Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People's 'Ruin' (The Yale Law Journal Forum, January 3 , 2020) on SSRN. Here is the abstract:
In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states. The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.” Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed to insulate citizens from what historians called “ruinous fines.”

This Essay puts Timbs into the context of the Court’s search for metrics to assess the legitimacy of governments’ choices about punishment. In and after the 1960s, as convicted and incarcerated people asserted that constitutional law constrained sovereign powers, the Court repeatedly encountered challenges to punishment. I bring together lines of cases that have sat in doctrinal silos to show the links between the concerns animating judicial limits on sentencing and judicial recognition of incarcerated people’s rights to safety, sanitation, food, medical care, access to courts, and religious observance. I argue that this body of law, produced through convicted individuals’ insistence that they were entitled to constitutional protection, should be read to constitute a nascent an-ti-ruination principle that all branches of government need to implement.

February 4, 2020 | Permalink | Comments (0)

Monday, February 3, 2020

Demleitner on Wire Fraud and Public Officials

Nora V. Demleitner (Washington and Lee University) has posted Can the Federal Government Use the Generic Wire Fraud Statute to Prosecute Public Officials for Corrupt Activities that are Conducted for Political Rather than Private Gain? (18-1059) (Preview of United States Supreme Court Cases, Volume 47, Issue 4, Pages 12-15 (Jan. 13, 2020)) on SSRN. Here is the abstract:
Petitioner and the United States agree that lies may be decisive in this case. How, why, and even which lies, however, are in dispute. Petitioner presents the Court with a broad question about the acceptability of the government’s parsing of motives to obtain a conviction. The government, on the other hand, sets out a workman-like question about whether it met the elements of the offense. Even though petitioner appeals all counts of her conviction, the argument centers largely on the wire fraud statute, 18 U.S.C. § 1343.

February 3, 2020 | Permalink | Comments (0)

Leshem & Tabbach on Repeat Offenders

Shmuel Leshem and Avraham D. Tabbach (Independent and Tel Aviv University) has posted The Option Value of Record-Based Sanctions on SSRN. Here is the abstract:
This paper offers an option value-based rationale for the consideration of a non-compliance record in sentencing decisions. We study compliance decisions of a population of individuals who live for two periods. We show that when non-compliance benefits are random and independent across periods, increasing or decreasing sanctions produce different option values to current-period compliance and non-compliance. The difference between these option values provides incentives for present-period compliance and facilitates a more efficient allocation of sanctions across periods. The optimal sanction scheme depends on the magnitude of the overall sanction relative to the distribution of benefits from non-compliance.

February 3, 2020 | Permalink | Comments (0)

Levin on Police Unions

Benjamin Levin (University of Colorado Law School) has posted What's Wrong with Police Unions? (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:
In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like critiques of unions in general, not just police unions. To the extent that public-sector unionism remains a social good because of concerns for economic inequality and worker power, wholeheartedly embracing these critiques seems like a risky proposition.

This Article examines the strange case of police unions and asks how they are (and are not) representative of U.S. unionism.

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February 3, 2020 | Permalink | Comments (0)

Sunday, February 2, 2020

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads

Hiding Homelessness: The Transcarceration of Homelessness

Seattle University School of Law

An Intellectual History of Mass Incarceration

Brooklyn Law School

Edward Snowden, National Security Whistleblowing, and Civil Disobedience

Columbia University - Law School

Retributive Abolitionism

Georgetown University Law Center

Second Looks & Criminal Legislation

Arizona State University, Sandra Day O'Connor College of Law

Do Criminal Minds Cause Crime? Neuroscience and the Physicalism Dilemma

Pace University School of Law

Guiding Presidential Clemency Decision-making

The Heritage Foundation

Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America

University of Hawaii - William S. Richardson School of Law, Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) and Kobe University - Graduate School of Business Administration

Opioids, Addiction Treatment, and the Long Tail of Eugenics

Willamette University College of Law

What Is Remembered (Book Review)

Brooklyn Law School

February 2, 2020 | Permalink | Comments (0)

Saturday, February 1, 2020

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads

The Problem of Problem-Solving Courts

University of Richmond School of Law

The Defender General

Washington University in St. Louis - School of Law and Wayne State University School of Law

Victims' Rights from a Restorative Perspective

University of San Francisco - School of Law and Fordham University School of Law

Secret Conviction Programs

Southern Methodist University - Dedman School of Law

Forensic Science Evidence, Wrongful Convictions and Adversarial Process

The University of Sydney Law School and University of New South Wales (UNSW) - Faculty of Law

The Unavoidably Empirical Fourth Amendment: A Case Study of Kansas v. Glover

Harvard Law School

Predictive Policing Theory

American University Washington College of Law

Misplaced Constitutional Rights

Duke University School of Law

Dignity and Therapeutic Jurisprudence: How We Can Best End Shame and Humiliation

New York Law School

Tasing the Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, and the Validity of Subsequent Constitutional Rights Waivers

Georgetown University - Center for Clinical Bioethics

February 1, 2020 | Permalink | Comments (0)

Friday, January 31, 2020

Graham on The Federal Rules of Evidence

Michael H. Graham (University of Miami - School of Law) has posted a series of articles from the Criminal Law Bulletin on the federal rules of evidence. The most recent is Federal Rules of Evidence: Final Article of Series; Summary of Proposed Rule Amendments — No 'Path' For 'Change' (59 CRIM.L.BULL. 1057 (2019)). Here is the abstract:
This current article in the Criminal Law Bulletin is the last of 58 articles in total published on Evidence. The series began in 2005. An earlier similar but far less ambitious series of Evidence articles, 59 in total, appeared in the Criminal Law Bulletin from 1980 to 1990. After 45 years as an academic commentator on Evidence and Professor of Law, for ten years at Illinois, followed by 35 years in Miami, I retired from active teaching in May of 2019. I will continue to author the Handbook of Illinois Evidence and the Handbook of Federal Evidence.

Summary of Proposed Rule Amendments:

Over the course of the 57 prior articles in the current Evidence series, many specific proposals have been put forth to amend the Federal Rules of Evidence along with on occasion the Federal Rules of Civil or Criminal Procedure. These proposed rule changes are contained in rule numerical order at the conclusion of the article. Each proposed amended rule appears with a footnote corresponding to the article from which it is taken.

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January 31, 2020 | Permalink | Comments (0)

Garnett on Christianity, Attempts, Complicity, and Virtue

Richard W. Garnett (Notre Dame Law School) has posted Attempts, Complicity, Virtue & the Limits of Law (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, John Witte, Jr. (London: Routledge), Forthcoming) on SSRN. Here is the abstract:
The law and doctrines of criminal attempts and complicity illustrate the longstanding and fundamental tenet of Anglo-American criminal law that the blame and condemnation of the political community, which gives criminal punishment its distinctive character, attaches primarily to actors’ states of mind rather than to the harms they cause or results they bring about. This focus on blameworthy states of mind both reflects and has been shaped by the similar emphasis in Christian scripture, tradition, and moral teaching. And so, an examination of criminal attempts and complicity is an opportunity to explore Christianity’s influence on the theory, content, and operation of the criminal law. It also reminds us of a central Christian concern that is and has been located, for the most, outside the scope of the criminal law: Christian moral teaching not only enjoins the avoidance of wrongful acts, but also the cultivation and practice of virtue. A Christian life of discipleship, it has been said, “is not simply about performing certain types of actions. It is a vocation, a transformation of one’s very self.” However, this aretaic dimension of Christian morality and moral theology, unlike the nexus between culpability and choice, is difficult to find in the criminal law, which is inclined more toward proscribing acts than prescribing character, more toward forbidding bad conduct than facilitating good character, more toward deterring decisions than transforming selves. It is worth asking why.

January 31, 2020 | Permalink | Comments (0)

Vilar on Criminal Mediation

Silvia Barona Vilar (University of Valencia - Faculty of Law) has posted Criminal Mediation, an Instrument for Victim Visibility, a Component of Criminal Access to Justice (Seeking Thruth (Issn: 1000–7504), 2018, no. 3 pp. 10-19)) on SSRN. Here is the abstract:
Insofar as the intention is to provide legal protection, to speak of victims and of certain victims in particular, implies recalling the obscure past that enveloped them with regard to their invisibility in the criminal system as a whole. Society assumed the burden of the criminal response, through the expropriation of the victims’ rights by the State in the interests of that social safeguard. We have for centuries accepted that it was what society required –it was the conquest of civilization, ending “an eye for an eye and a tooth for a tooth” and the lex talionis. That was the best solution, although the outcome of these responses to that situation, owing to frustration, disenchantment and the inoperability, on occasions, of the model of social response, have prompted progress towards a more active role of victims in the criminal response and in the modulation of that response. In other words, to go beyond the preventive approach, and to incorporate resocialization or the restorative approach. This would open a wider range of possibilities that should not be exclusively considered as previously addressed or with a particular person in mind (prevention, society; resocialization, the accused; reparation, victims). Rather, they should all imply together that society can act and assume the burden in the face of criminally punishable conduct. Undeniable steps have been taken at national and international centres that have implied progress towards achieving victim visibility. And that progress has necessarily to include criminal mediation, which has been acquiring, over recent decades, an extended scope.

January 31, 2020 | Permalink | Comments (0)

Thursday, January 30, 2020

Graham on Self-Authentication and Certifications Under the Confrontation Clause

Michael H. Graham (University of Miami - School of Law) has posted Self-Authentication Generally: Certifications Under The Confrontation Clause; Confrontation Clause Application Summary (55 CRIM.L.BULL. 71 (2019)) on SSRN. Here is the abstract:
Authentication of things and identification of people represent a special aspect of relevancy, Fed.R.Evid. 401. To illustrate, a telephone conversation offered to show knowledge on the part of a speaker is not relevant unless the person speaking is sufficiently identified, nor is a purported letter of the defendant relevant unless it is properly shown that the defendant actually wrote the letter. Proof of authenticity or identification may be by either direct or circumstantial evidence.

Satisfaction of the requirement of authentication or identification is a matter to be approached in accordance with Fed.R.Evid. 104(b). Accordingly, once the court finds that evidence has been introduced sufficient to permit a reasonable juror to find that the matter in question is what its proponent claims it is, a sufficient foundation for introduction in evidence has been laid, Fed.R.Evid. 104(b). When an item is offered into evidence, the court may permit counsel to conduct a limited cross-examination, referred to as voir dire, on the foundation offered. In reaching its determination, the court must view all the evidence introduced as to authentication or identification, including issues of credibility, most favorably to the proponent. The ultimate decision as to whether a person, document, or item of real or demonstrative evidence is as purported is for the trier of fact. Of course, the party who opposed introduction of the evidence may still offer contradictory evidence before the trier of fact or challenge the credibility of the supporting proof in the same way that he can dispute any other testimony. However, upon consideration of the evidence as a whole, if a sufficient foundation has been laid in support of introduction, contradictory evidence goes to the weight to be assigned by the trier of fact and not to admissibility.

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January 30, 2020 | Permalink | Comments (0)

Diamond on Healing After Rampage Shootings

James D. Diamond (National Tribal Trial College) has posted In the Aftermath of Rampage Shootings: Is Healing Possible? Hard Lessons from the Red Lake Band of Chippewa Indians and Other Indigenous Peoples (GEO. J. L. & MOD. CRIT. RACE PERSP. Vol. 11:101 (2019)) on SSRN. Here is the abstract:
This Article produces insights, ideas, and findings which link mass shootings and communal responses in the United States and on American Indian reservations. This Article compares the aftermath of these tragedies in non-indigenous communities with the responses when the tragedies have occurred in certain Native American communities, including comparisons between indigenous and non-indigenous courts. It looks to the roots of the Native American approach in indigenous historical evidence. Described is an institutional weakness in the Anglo-European judicial model in how it responds to the aftermath of heinous crimes. Explored is the adaptation of certain practices from indigenous peoples as a method of contributing to healing, closure, and reconciliation following heinous criminal behavior. Further explored is the possibility of incorporating face-to-face, interpersonal interactions between mass shooting victims, offenders, and their families.

January 30, 2020 | Permalink | Comments (0)

Wednesday, January 29, 2020

Masur & McAdams on Police Violence in The Wire

Jonathan S. Masur and Richard H. McAdams (University of Chicago - Law School and University of Chicago Law School) have posted Police Violence in The Wire (2018 University of Chicago Legal Forum, Forthcoming) on SSRN. Here is the abstract:
That police brutality is a common occurrence in HBO’s The Wire does not set it apart from other filmic depictions of police. What is distinctive is the fact that police violence is neither condoned nor relegated exclusively to a few “bad apples.” Instead, The Wire depicts structural causes of police violence by showing how organizational dysfunction leads some of the very best police officers on the force to commit unjustified and inexcusable violence. We explore four structural mechanisms the show depicts: the police code of loyalty: the hyper-masculine need to project power and dominance; the strategic imperatives of the War on Drugs; and a collective action problem among police. The implication of this complex depiction is that the elimination of police brutality requires far more than removal of a few bad officers. We conclude by briefly exploring how police departments might reverse the structural and institutional mechanisms causing police violence.

January 29, 2020 | Permalink | Comments (0)