CrimProf Blog

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

Tuesday, November 27, 2018

Heriot on Police Use of Force

On November 15, 2018, the U.S. Commission on Civil Rights published a report, entitled Police Use of Force: An Examination of Modern Policing Practices. This individual Statement of Commissioner Gail Heriot is a part of that report.

In it, Commissioner Heriot points out that, during the Jim Crow Era, the most common complaint among African Americans about law enforcement was that the authorities did not take crime against African Americans seriously. Although that kind of neglect receives little attention in the media today, it continues to be a significant problem.

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November 27, 2018 | Permalink | Comments (0)

Monday, November 26, 2018

Furton on Marijuana Legalization and Crime

Glenn Furton (Department of Agricultural and Applied Economics) has posted High Crimes? The Effect of Marijuana Legalization on Crime in Colorado on SSRN. Here is the abstract:
 
The previous decade has witnessed a surprising number of states move to legalize cannabis for both medical and recreational use. This movement has caused controversy regarding the uncertainty of the effect of legalization on criminal activity. While few empirical studies have shed light on recent legalization and crime, economic theory suggests that a reduction in prohibitions ought not to cause an increase in criminal activity. This study examines the effect of the legalization of recreational marijuana in Colorado on crime rates among all individuals as well as those 21 years of age and under using a synthetic control method to construct a counterfactual state of Colorado. The results indicate that crime increases in all categories in Colorado, with an especially significant increase in property crime committed by adults.

November 26, 2018 | Permalink | Comments (0)

Holsinger et al. on Predicting Crime

Alexander HolsingerChristopher LowenkampEdward LatessaRalph SerinThomas H. CohenCharles RobinsonAnthony Flores and Scott Vanbenschoten (University of Missouri at Kansas City, AO US Courts Probation and Pretrial Services Office, University of Cincinnati - College of Education, Criminal Justice, and Human Services, Carleton University, Government of the United States of America - Administrative Office of the U.S. Courts, AO US Courts, California State University and AO US Courts) have posted A Rejoinder to Dressel and Farid: New Study Finds Computer Algorithm is More Accurate than Humans at Predicting Arrest and as Good as a Group of 20 Lay Experts (Federal Probation, 82(2): 51-56) on SSRN. Here is the abstract:
 
IN A RECENT article published in Science Advances, Dressel & Farid (2018) presented results from their recent study that they believe call into question the accuracy and fairness of the COMPAS risk assessment tool specifically and all statistically-based prediction tools more generally. In reaching these two conclusions, Dressel and Farid made the arguments that laypeople are as accurate (or better) and as fair in their prediction of reoffending as statistically based risk assessment instruments empirically designed to predict reoffending. In the following pages, we closely examine the authors’ premise, methodology, and conclusions, focusing on some omissions and incorrect assumptions. In addition, while Dressel and Farid focus on the binary decision of “future crime” (yes vs. no), we also argue that risk assessment has important justice related objectives beyond merely predicting new criminal conduct. We also think it is worth noting that none of us has any ties to COMPAS or its parent company Northpointe. This rebuttal is not meant as an endorsement of COMPAS.

November 26, 2018 | Permalink | Comments (0)

Rosenbloom on Crimmigration and Severity

Rachel E. Rosenbloom (Northeastern University - School of Law) has posted Beyond Severity: A New View Of Crimmigration (Lewis & Clark Law Review, Vol. 22, No. 3, 2018) on SSRN. Here is the abstract:
 
While the Trump Administration’s harsh crackdown on immigrants builds on an enforcement infrastructure inherited from previous administrations, this Article cautions against characterizing it as merely an escalation of “crimmigration”—the merging of criminal and immigration law evident in recent decades. I argue instead that key contrasts between current policies and the previous era provide an opportunity to understand the crimmigration era in a whole new way. Crimmigration scholars have thoroughly explored the increasingly harsh nature of immigration enforcement as it has developed over the past few decades. However, crimmigration scholarship, framed exclusively as a critique of severity, has neglected to account for significant aspects of the (pre-Trump) crimmigration era that fell outside the severity paradigm. In particular, crimmigration scholars have largely overlooked the advent of new visas and forms of discretionary relief that Congress created between 1990 and 2000 for noncitizens who are victims of domestic violence, trafficking, and other crimes. While both increased enforcement and crime-based relief have been the subject of significant analysis, this Article is the first to bridge the two subjects, proposing a new way to understand the relationship between these two key aspects of immigration law as it has developed since the 1980s: the “bad news” narrative of ramped-up enforcement and the “good news” narrative of expanded relief. Utilizing frameworks drawn from both feminist theory and criminology, this Article argues that the expansion of relief was never the counterweight to crimmigration’s harsh enforcement policies that it may have seemed but rather an integral component of crimmigration itself, and that crimmigration is best understood not simply as a transition to severity but as a complex phenomenon that produced new categories of favored immigrants at the same time that it expanded the categories of immigrants subject to detention, deportation, and other sanctions. This insight necessitates a new understanding not only of crimmigration but of the advocacy strategies that have taken place in its shadow.

November 26, 2018 | Permalink | Comments (0)

Berger on Humility and McLachlin’s Criminal Justice Jurisprudence

Benjamin L. Berger (York University - Osgoode Hall Law School) has posted What Humility Isn’t: Responsibility and the Judicial Role (in Daniel Jutras and Marcus Moore, eds., The Chief: Essays in Honor of Chief Justice Beverley McLachlin (Forthcoming)) on SSRN. Here is the abstract:
 
In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice jurisprudence that reflect elements of this understanding of the virtue of judicial humility, including careful attention to one’s responsibilities in relationship to vulnerability, history, and the role of others. Not an exercise in hagiography, the chapter also identifies one aspect of the McLachlin Court’s criminal justice jurisprudence — police powers — that fails to express this virtue, so understood. Ultimately, however, the piece argues that Chief Justice McLachlin’s work in the field of criminal law offers an invaluable ethical resource for thinking more deeply about the shape and demands of humility as an adjudicative virtue.

November 26, 2018 | Permalink | Comments (0)

Sunday, November 25, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Drug-Induced Homicide Defense Toolkit

West Virginia University - College of Law, Ohio State University - Michael E. Moritz College of Law, Drug Enforcement and Policy Center, Health in Justice Action Lab and Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences
275
2.

Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions

University of Utah - S.J. Quinney College of Law
160
3.

Incapacitating Criminal Corporations

Harvard Law School
119
4.

Poor Wesley Hohfeld

University of Michigan Law School
116
5.

Execution by Nitrogen Hypoxia: The Search for Scientific Consensus

Independent
105
6.

Nondelegation and Criminal Law

Hofstra University - Maurice A. Deane School of Law
76
7.

The Time Frame Challenge to Retributivism

Brooklyn Law School
55
8.

Crime, Punishment, and Legal Error: A Review of the Experimental Literature

Boston University - School of Law and Boston University, School of Law, Students
40
9.

Response Retributivism: Defending the Duty to Punish

Polonsky Academy, Van Leer Jerusalem Institute
40
10.

Who Locked Us Up? Examining the Social Meaning of Black Punitiveness

University of Florida - Levin College of Law
35

November 25, 2018 | Permalink | Comments (0)

Saturday, November 24, 2018

Next week's criminal law/procedure arguments

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

Monday

  • Nieves v. Bartlett: Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.

Wednesday

  • Timbs v. Indiana: Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

November 24, 2018 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
University of Southern California Gould School of Law

Date Posted: 11 Oct 2018 

1,236
2.
University of Southern California Gould School of Law

Date Posted: 03 Nov 2018 

431
3.
University of Utah - S.J. Quinney College of Law

Date Posted: 01 Nov 2018 [5th last week]

159
4.
Cornell Law School

Date Posted: 08 Oct 2018 

158
5.
Brooklyn Law School

Date Posted: 13 Nov 2018 [new to top ten]

113
6.
University of Surrey School of Law

Date Posted: 29 Oct 2018 

107
7.
University of San Diego School of Law

Date Posted: 16 Nov 2018 [new to top ten]

107
8.
Southern Methodist University - Dedman School of Law

Date Posted: 30 Oct 2018 [10th last week]

84
9.
Santa Clara University - School of Law

Date Posted: 04 Nov 2018 [new to top ten]

82
10.
Yale University - Law School, Yale University - Law School, Yale University, Law School, Yale Law School, Yale Law School - Student, Yale Law School - Student, Yale Law School - Student and Yale Law School - Student

Date Posted: 18 Oct 2018 [new to top ten]

77

November 24, 2018 | Permalink | Comments (0)

Friday, November 23, 2018

Westen on Unwitting Justification

Peter K. Westen (University of Michigan Law School) has posted Unwitting Justification (San Diego Law Review, Vol. 55, No. 2, 2018) on SSRN. Here is the abstract:
 
An assailant is on the verge of shooting a hated rival, Jones, when Jones, oblivious to the attack, decides in that instant to kill his assailant, thereby becoming what commentators call an “unknowing self-defender” or “unwittingly justified actor.” Under the terms of the Model Penal Code Jones is at the very least guilty of an impossibility attempt because he satisfies all the elements of attempted murder under the Code. The question that has divided commentators since George Fletcher and Paul Robinson’s debate it in the 1970s is whether Jones is also guilty of the completed crime of murder and whether the latter is the more appropriate charge. Anthony Duff, for one, has said that the debate seems “irresoluble.” The debate is, indeed, irresoluble but only so long as commentators ignore the issue on which the answer necessarily turns, namely, why resulting harms matter in criminal law -- that is, why criminal law distinguishes in name and penalty between impossibility attempts and complete crimes. Commentators differ regarding why resulting harm matters. I examine what I regard as the most promising account, one that originates with Plato. Based on Plato’s account, I argue that most, of not all, acts of unwitting justification should be punished as impossibility attempts rather than as completed crimes.

November 23, 2018 | Permalink | Comments (0)

O'Hear on Wisconsin and Mass Incarceration

Michael M. O'Hear (Marquette University - Law School) has posted Wisconsin Sentencing in the Walker Era: Mass Incarceration as the New Normal (Federal Sentencing Reporter, Vol. 30, No. 2, 2017) on SSRN. Here is the abstract:
 
First elected Wisconsin’s governor in 2010, Republican Scott Walker came to office with a tough-on-crime reputation. Consistent with campaign promises, Walker and his legislative allies swiftly repealed an ambitious set of “earned release” reforms that had been adopted just two years earlier. Since then, however, there have been few notable changes in Wisconsin sentencing law. Tight budgets and chronically overcrowded prisons have helped to keep punitive instincts in check. At the same time, a set of leaders in various counties and agencies around the state have quietly embraced the “evidence-based decision making” model for criminal justice. This may prove a transformative development over the long run, but there has yet to be any discernible impact on Wisconsin’s imprisonment rate, which remains at a record-high level.

November 23, 2018 | Permalink | Comments (0)

Thursday, November 22, 2018

Kahn-Fogel on Katz, Carpenter, and Classical Conservatism

Kahnfogel_nickNicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Katz, Carpenter, and Classical Conservatism on SSRN. Here is the abstract:
 
In 1967, in Katz v. United States, the Supreme Court adopted a privacy-based framework for determining whether government conduct constitutes a Fourth Amendment search. Under that standard, a search occurs when the government infringes on an expectation of privacy that “society is prepared to recognize as ‘reasonable.’” Although the Court qualified its commitment to Katz in 2012 by asserting that an older, property-based approach survived Katz and remains the first-line test for identifying Fourth Amendment searches, most of the Court today is committed to preserving a role for the Katz standard. Yet most of the justices have also recognized problems with Katz, including its indeterminacy and potential for doctrinal circularity and the superior capacity of legislatures to address Katz’s seemingly ahistorical directive. In this Article, I offer a traditionalist alternative to the mainstream conception of Katz as ashistorical. I draw on classically conservative, or Burkean, constitutional theory, which rejects both rigid forms of originalism and ahistorical living constitutionalism. Such a model requires reference to history and tradition as a basis for identifying society’s core commitments, but it allows for incremental reform as tradition evolves over time. This rubric is consistent with the way the Court has sometimes applied Katz, and it addresses the primary flaws commentators have associated with the Katz framework. The Court should apply this traditionalist approach to Katz in a more consistent, self-conscious way to achieve more principled outcomes in the future.

November 22, 2018 | Permalink | Comments (0)

Wednesday, November 21, 2018

O'Hear on Mass Incarceration in the Heartland

Michael M. O'Hear (Marquette University - Law School) has posted Mass Incarceration in the Heartland: Midwestern States Struggle to Tame Historically High Prison Populations (Federal Sentencing Reporter, Vol. 30, No. 2, 2017) on SSRN. Here is the abstract:
 
This brief essay introduces an FSR issue devoted to recent developments in sentencing-related policies in various Midwestern states. Contributions focus on Illinois, Kansas, Michigan, Minnesota, Ohio, and Wisconsin.

November 21, 2018 | Permalink | Comments (0)

Morse on The Neuroscientific Non-Challenge

Stephen Morse (University of Pennsylvania Law School) has posted The Neuroscientific Non-Challenge to Meaning, Morals, and Purpose (In, Neuroexistentialism: Meaning, Morals, and Purpose in the Age of Neuroscience 333-357 (Gregg D. Caruso and Owen Flanagan eds., 2018)) on SSRN. Here is the abstract:
 
The primary quarries of those who think that neuroscience poses a challenge to meaning, morals, and purpose are the related concepts of responsibility and desert, especially as they play a role in criminal law. After all, responsibility and desert are intrinsic features of present moral and criminal legal concepts, practices, and institutions, including the imposition of punishment. This chapter begins by reviewing the law's psychology, concept of personhood, and criteria for criminal responsibility. It then turns to neuroscience’s two primary challenges, determinism and the “victim of neuronal circumstances”/“pack of neurons” (VNC/PON) model, suggesting that neither is new to neuroscience and neither at present justifies revolutionary abandonment of moral and legal concepts and practices that have been evolving for centuries in both common law and civil law countries. I then turn to the new version of determinism, called by its proponents “hard incompatibilism.” First, I suggest some concerns internal to the approach. Then, because the metaphysical premises for responsibility or jettisoning it cannot be decisively resolved, I suggest that the real issue is the type of world we want to live in and that the hard incompatibilist vision is not normatively desirable, even if it is somehow achievable.

November 21, 2018 | Permalink | Comments (0)

Tuesday, November 20, 2018

Simonson on "The People" in Criminal Procedure

Jocelyn Simonson (Brooklyn Law School) has posted The Place of 'the People' in Criminal Procedure (Columbia Law Review, Vol. 119, 2019, Forthcoming) on SSRN. Here is the abstract:

The rules and practices of criminal procedure assume a clean separation between the interests of the public and the interests of the lone defendant who stands accused. Even the names given to criminal prosecutions often declare this dichotomy, as in jurisdictions such as California, Illinois, and New York that caption criminal cases “The People of the State of X v. John Doe.” This Essay argues that this traditional people/defendant dichotomy is critically flawed, and then builds on that critique to point the way toward a more realistic, inclusive, and just vision of the role of the public in the criminal process.

The people/defendant dichotomy in the ideology of contemporary criminal procedure rests on two mistaken premises: first, that prosecutors are and should be the primary representatives of the public in the courtroom; and second, that the rules of criminal procedure must limit direct public participation to an illusory, limited subset of the public that is deemed “neutral” and “unbiased.” These conceptions of representation and neutrality distort the criminal legal system’s understanding of who “the people” are, marginalizing and excluding the voices of those members of the community who stand to be harmed by the defendant’s prosecution or incarceration. As a result, the ideology of the people/defendant dichotomy promotes practices that are more punitive than the multifaceted interests of the public dictate.

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November 20, 2018 | Permalink | Comments (0)

Kolber on The Time Frame Challenge to Retributivism

KolberAdam J. Kolber (Brooklyn Law School) has posted The Time Frame Challenge to Retributivism on SSRN. Here is the abstract:
 
Retributivists believe that criminal offenders should suffer or be punished in proportion to what they morally deserve. There is, however, an often-ignored debate as to whether desert should be assessed across a person’s life (the “whole life” view) or only for crimes that are the subject of a current sentencing proceeding (the “current crime” view). Both options are unappealing. The whole life view may be superior on theoretical grounds but is hopelessly impractical. The current crime view is somewhat more practical but has no solid theoretical foundation. The lack of a suitable time frame in which to assess desert represents an important challenge to retributivist conceptions of proportionality. Even uncertainty about the proper time frame may itself be detrimental to some retributivists’ hopes of justifying the incarcerative sentences of particular offenders.

November 20, 2018 | Permalink | Comments (0)

Billis & Nandor on Alternative Types of Procedure and Social Legitimacy

Emmanouil Billis and Knust Nandor (Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Foreign and International Criminal Law and Independent) have posted Alternative Types of Procedure and the Formal Limits of National Criminal Justice: Aspects of Social Legitimacy (In: Ulrich Sieber, Valsamis Mitsilegas, Christos Mylonopoulos, Emmanouil Billis, Nandor Knust (eds.): Alternative Systems of Crime Control. National, Transnational, and International Dimensions. Berlin, Duncker & Humblot, 2018, pp. 39-58 (ISBN 978-3-86113-786-3 (Max-Planck-Institut)) on SSRN. Here is the abstract:
 
The present article focuses on national legal orders and has as its main point of reference the criminal trial as a system of conflict resolution aimed at guaranteeing social order and peace within a specific social context. It starts out with important normative-theoretical distinctions – with paradigmatic references to known Western legal orders – in order to examine basic systemic assumptions and internal dogmatic contradictions in terms of the complex definitional background (of the purposes and problems) of contemporary forms of alternative, informal, and abbreviated criminal procedure. Based on this exploration of the formal limits of criminal justice, the study then addresses the problem of social legitimacy in applying alternative procedural mechanisms. The recent Hollywood and Harvey Weinstein cases of sexual misconduct in the workplace serve as examples. Special attention is paid to the fundamental principles and human rights guarantees of criminal law, such as the principles of legality and culpability, the rule-of-law and separation-of-powers principles, the public nature of the criminal process, and other important fair-trial elements. For this purpose, central aspects of the socio-legal theory by Niklas Luhmann on legitimacy through process are explored. The paper closes by discussing the importance of the compatibility of the traditional objectives and protective principles of a criminal trial with the new and alternative types of national criminal procedure.

November 20, 2018 | Permalink | Comments (0)

Bell on Graymail in Domestic Criminal Prosecutions

Charles Bell has posted Surveillance Technology and Graymail in Domestic Criminal Prosecutions (16 Georgetown Journal of Law & Public Policy 537) on SSRN. Here is the abstract:
 
Following World War II, the expansion of the bureaucratized intelligence services and the Federal Bureau of Investigation resulted in the development and refinement of evidentiary privileges to protect intelligence and law enforcement sources and methods from disclosure at trial. In cases involving the intelligence services and the national security establishment, the clash between these evidentiary privileges and defendants' discovery rights resulted in "graymail"-the trial tactic of forcing prosecutors into a dilemma between dismissing charges or disclosing sensitive or classified information about their sources and methods. The Classified Information Procedures Act has, for the most part, solved the problem of graymail with regard to classified information by prescribing workable procedures for its disclosure in evidence. However, law enforcement sources and methods that are sensitive but unclassified are protected by the law enforcement evidentiary privilege, and thus still subject to graymail. Law enforcement's increased use of secret surveillance technology like cell site simulators and zero-day vulnerabilities has exacerbated the problem of graymail in domestic criminal prosecutions. In the Playpen cases, a series of prosecutions arising from a sting of a child pornography ring, the FBI retroactively classified the source code of the Network Investigative Technique (NIT) the Bureau used to hack the Playpen dark web server. As a result, the Playpen cases offer a unique opportunity to observe graymail tactics in nearly identical cases both with and without CIPA's mechanism for controlled disclosure. CIPA's success in mitigating graymail in the Playpen cases argues that an analogous statutory mechanism for controlled disclosure would be the best way to mitigate the potential for graymail in other cases involving secret, but unclassified, law enforcement sources and methods.

November 20, 2018 | Permalink | Comments (0)

Monday, November 19, 2018

Beety et al. on Drug-Induced Homicide

Valena Elizabeth BeetyAlex KreitJeremiah Goulka and Leo Beletsky (West Virginia University - College of Law, Ohio State University - Michael E. Moritz College of Law, Drug Enforcement and Policy Center, Health in Justice Action Lab and Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences) have posted Drug-Induced Homicide Defense Toolkit on SSRN. Here is the abstract:
 
In response to the growing opioid crisis, many prosecutors are treating overdose deaths as homicides. Since 2010, drug-induced homicide prosecutions have increased at least threefold. Criminal defense attorneys and defendants' families have asked for help in understanding these cases and how to defend them. This Toolkit is an effort to provide that help.

November 19, 2018 | Permalink | Comments (0)

Kinports on Suspicion and Exigent Circumstances

KinportsKit Kinports (Penn State Law) has posted The Quantum of Suspicion Needed for an Exigent Circumstances Search (University of Michigan Journal of Law Reform, Forthcoming) on SSRN. Here is the abstract:

For decades, the Supreme Court opinions articulating the standard of exigency necessary to trigger the exigent circumstances exception to the Fourth Amendment’s warrant requirement have been maddeningly opaque and confusing. Some cases require probable cause, others call for reasonable suspicion, and still others use undefined and unhelpful terms such as “reasonable to believe” in describing how exigent the situation must be to permit the police to proceed without a warrant. Not surprisingly, the conflicting signals coming from the Supreme Court have led to disagreement in the lower courts.

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November 19, 2018 | Permalink | Comments (0)

Kim & Kim on Exoneree Compensation and Endogenous Plea Bargaining

Chulyoung Kim and Sang-Hyun Kim (Yonsei University and Yonsei University) have posted Exoneree Compensation and Endogenous Plea Bargaining: Theory and Experiment on SSRN. Here is the abstract:
 
We provide a model of endogenous plea bargaining in which a prosecutor has discretion over her choice of plea bargains in response to a level of exoneree compensation mandated by the state. It is shown that an increase of the compensation may invite a sentence-maximizing prosecutor to offer a higher or lower plea bargain discount, depending on parameter values. We brought this model to the lab, finding that (i) when the exoneration process featured high accuracy, a higher level of exoneree compensation induced no significant change in the average plea bargain discounts but still reduced the number of innocent pleas without affecting the number of guilty individuals pleading guilty, and (ii) when the exoneration process was plagued with low accuracy, a higher level of exoneree compensation increased the average plea bargain discounts but had no significant influence on the number of innocent and guilty individuals pleading guilty. These findings suggest that exoneree compensation could be an effective policy tool in reducing innocent pleas and wrongful convictions when combined with accurate exoneration processes, and that a statute for exoneree compensation could be effective even when one cannot expect coordination between the prosecution office and the state legislative.

November 19, 2018 | Permalink | Comments (0)