CrimProf Blog

Merchant on Judicial Discretion in Sentencing Under Plea Agreements

Sam J. Merchant (University of Oklahoma College of Law) has posted Plea Agreements and Suspending Disbelief on SSRN. Here is the abstract:

 

This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker. Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range. Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence. The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged. Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

"The Seemingly Endless Cycle of Reforms in Juvenile Justice"

From The Marshall Project, via NACDL's news update:

On Tuesday, Ohio Gov. Mike DeWine announced that the state will try to shut down its three large youth correctional facilities in favor of building smaller and less centralized units. DeWine cited findings that young people “do not respond well to adult-style incarceration,” Crain’s Cleveland Business reported.

. . . .

Los Angeles County may serve as a cautionary tale for Ohio. Four years ago, the county’s own juvenile justice working group made similar proposals in a plan called “Youth Justice Reimagined.” Like in Ohio, one of the centerpieces of the reform was to decentralize the county’s juvenile halls and replace them with “smaller, more homelike ‘safe and secure healing centers,’” according to the Pasadena Star-News.

Then last year the county reopened the previously shuttered Los Padrinos Juvenile Hall, reasoning that consolidating youths into the facility would let the county system operate more efficiently. Officials are still trying to lower the number of young people at the hall, but violence and drugs have proliferated, youths report feeling unsafe and the threat of another shutdown looms constantly.

Noorda on Prison Labor in the Netherlands

Hadassa Noorda (University of Amsterdam) has posted 'Voluntary' Prison Labour in the Netherlands (forthcoming, European Labour Law Journal) on SSRN. Here is the abstract:

 

As of 2021, work in prisons in the Netherlands is voluntary, at least to some extent. In this article, I examine the protection of working prisoners' labour rights after the shift to a voluntary work scheme for prisoners in the Netherlands. Work in Dutch prisons may be freely chosen to some extent, but the Dutch scheme for work in prison raises questions about offenders' rehabilitation. Having work opportunities while in prison is said to contribute to the learning of skills, promote rehabilitation and societal reintegration and provide prisoners with income. However, prisoners in the Dutch prison perform their work for low pay and have limited meaningful options for the work they perform. This has a profound impact on their time in prison and on their reintegration into the labour market after having served their sentences. I argue that these issues demand an in-depth examination if prisoners' rights are to be protected. I describe working prisoners' labour rights in the Netherlands and address the normative question of the rights that working prisoners should have based on the principle that imprisonment itself is the punishment and that extensions of prison sentences in society are illegitimate. My proposal for considering the amendment of the approach to prison labour in the Netherlands aims to be useful for the analysis of prison labour in general.

Crocker on Social Cost and The Fourth Amendment

Thomas P. Crocker (University of South Carolina School of Law) has posted The Fourth Amendment And The Problem Of Social Cost on SSRN. Here is the abstract:

 

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept's meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their "substantial social costs." According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. Police illegality-the precondition for exclusion or damagesitself produces substantial social costs, especially when one considers the systemic effects of minor illegality on a community-wide scale. The Court does not currently take account of these social costs, raising the question: why not? Taking a cue from Professor Ronald Coase's famous analysis of the problem of social cost, this Article analyzes why it is necessary for the Court to refocus its social cost inquiry to include pervasive and corrosive social costs external to its present doctrinal focus. Surprisingly, given its analytic centrality, neither the Court nor commentators have clarified what "social cost" entails or how to calculate it. This Article takes up this task and charts the unexpected implications that would follow if the Court were to take its own commitment to minimize "social cost" seriously.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Stopping Scams Against Consumers: Roadmap for a National Strategy Nick Bourke Independent Date Posted: 24 Jul 2024	215
2.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	195
3.	Abolish Conspiracy Evan D. Bernick Northern Illinois University - College of Law Date Posted: 07 Aug 2024	158
4.	Rights, Reasons, and Culpability in Tort Law and Criminal Law Gregory Antill Columbia Law School Date Posted: 27 Jun 2024	141
5.	Rethinking the Role of Intentional Wrongdoing in Criminal Law Gregory Antill Columbia Law School Date Posted: 31 Jul 2024 [6th last week]	93
6.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024 [5th last week]	89
7.	MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT W. David Ball Santa Clara School of Law Date Posted: 08 Aug 2024 [8th last week]	81
8.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [7th last week]	76
9.	From Visibility to Shadows: The Impact of Police Discretion on Prostitution in Response to Legal Changes Yutian An, Yingjie Fan, Xuancheng Qian and Leo Yang Yang Harvard University - Harvard Law School, Princeton University, Princeton University and Stanford University - Centre on China’s Economy and Institutions Date Posted: 28 Jun 2024 [10th last week]	70
10.	A Specious Form of Judicial Restraint Nelson Lund George Mason University - Antonin Scalia Law School Date Posted: 02 Jul 2024 [9th last week]	69

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	AI-Assisted Police Reports and the Challenge of Generative Suspicion Andrew Guthrie Ferguson American University Washington College of Law Date Posted: 20 Aug 2024	489
2.	Loper Bright and the Great Writ: Will the New Constitutionalists End "Treason to the Constitution," Restore the Judicial Power, and Make the Law of the Land Supreme Again? [Forthcoming in Columbia Human Rights Law Review, 2024] James S. Liebman and Anthony Amsterdam Columbia University - Law School and New York University School of Law Date Posted: 11 Jul 2024	323
3.	Prosecutor Transparency Project: Racial Disparities Study (Washtenaw County, Michigan) Grady Bridges and J.J. Prescott Independent and University of Michigan Law School Date Posted: 31 Dec 2023	308
4.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	195
5.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024	89
6.	MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT W. David Ball Santa Clara School of Law Date Posted: 08 Aug 2024 [7th last week]	77
7.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [6th last week]	76
8.	Urgent Issues and Prospects on Investigative Interviews with Children and Adolescents Victoria Talwar, Angela Crossman, Stephanie Block, Sonja Brubacher, Rachel Dianiska, Ana Karen Espinosa Becerra, Gail S. Goodman, Michael Lamb, Kamala London, David La Rooy, more... McGill University, City University of New York (CUNY) - John Jay College, University of Massachusetts Lowell, Griffith University, University of California, Irvine, University of Ottawa, University of California, Davis, University of Cambridge, University of Toledo, University of Otago Date Posted: 06 Aug 2024	68
9.	The Victims' Rights Mismatch Lee Kovarsky University of Texas at Austin, School of Law Date Posted: 12 Aug 2024	53
10.	A Lifeline During Custodial Interrogations? The Right to Counsel and Reflections on R. v. Dussault and R. v. Lafrance Amar Khoday University of Manitoba - Faculty of Law Date Posted: 03 Jul 2024	52

Byars on Recidivist Organizational Offenders

Kaleb Byars (Mercer University School of Law) has posted Recidivist Organizational Offenders and the Organizational Sentencing Guidelines on SSRN. Here is the abstract:

 

Despite recent Congressional hearings and public attention, the question of how to fairly and efficiently punish recidivist organizational offenders remains unresolved. Any discussion regarding the most optimal legal response to recidivist organizational crime is incomplete without a solution accounting for the use of organizational deferred prosecution agreements ("DPAs") and non-prosecution agreements ("NPAs"). These tools allow criminal defendants to resolve charges without sustaining convictions that attach to the defendants' criminal records, and they are used often in the organizational context.

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"Can the city of Savannah fine or jail people for leaving guns in unlocked cars? A judge weighs in"

From AP, via NACDL's news update:

Savannah’s mayor and city council voted unanimously in April to outlaw keeping firearms in unlocked vehicles, with maximum penalties of a $1,000 fine and 30 days in jail. They said the law would make it harder for criminals to steal guns, and cited local police statistics showing more than 200 guns reported stolen last year from vehicles that weren’t locked.

. . . .

Chatham County Superior Court Judge Benjamin Karpf didn’t rule Wednesday on Belt’s motion to halt enforcement of the Savannah ordinance while considering his underlying lawsuit that seeks to have it thrown out permanently.

Monroe said Savannah’s ordinance should be voided because it violates a state law prohibiting local governments from regulating “the possession, ownership, transport, (or) carrying” of firearms.

Leshem on The Informational Role of Elevated Standards of Proof

Shmuel Leshem has posted The Informational Role of an Elevated Standard of Proof on SSRN. Here is the abstract:

This paper shows that an exacting standard of proof in criminal proceedings aligns prosecutors'information-gathering incentives with society's preferences. A conviction-oriented prosecutor must collect a random evidentiary signal before deciding whether to press charges against a suspect. Elevating the standard of proof above society's ex post optimal standard induces the prosecutor to collect a more informative signal, which reduces society's ex ante expected costs of errors. A higher standard of proof not only reduces the incidence of wrongful convictions, but may also increase the rate of rightful convictions.

Franks on Non-consensual Pornography

Mary Anne Franks (George Washington University - Law School) has posted an abstract of The Criminalization of Non-consensual Pornography in the United States on SSRN. Here is the abstract:

 

The legal, technological, and social landscape of nonconsensual pornography in the United States has changed dramatically over the last decade. The number of U.S. states criminalizing the abuse as increased from three to 48; major social media and internet companies have banned nonconsensual pornography from their platforms and services; and nonconsensual pornography, now also commonly referred to ‘nonconsensual intimate imagery’ or ‘image-based sexual abuse’, is widely recognized as a form of abuse. This transformation is largely attributable to the efforts of courageous victims of this abuse and the civil society advocacy organizations that support them, in particular Dr. Holly Jacobs and the organization she founded in 2013, the Cyber Civil Rights Initiative (CCRI). But challenges remain. Because no federal law prohibiting this abuse has been enacted, and the definition and classification of nonconsensual pornography varies by jurisdiction, victims are left with an inconsistent and ineffective legal patchwork for this devastating and frequently multijurisdictional crime.

Bland & Brooks on Criminalization of Sex Work

Sean E. Bland and Ben Brooks (Santa Clara University School of Law and Whitman-Walker Health) have posted Improving Laws and Policies to Protect Sex Workers and Promote Health and Wellbeing: A Report on Criminalization of Sex Work in the District of Columbia on SSRN. Here is the abstract:

The District of Columbia has made significant investments in reducing violence and improving community health. DC implemented violence interruption programs and accountability mechanisms, reformed policing and trained in cultural competency, and increased access to health insurance for vulnerable communities of immigrants and homeless people. Despite their continued prioritization, violence and infectious disease continue to be major public health challenges, especially for DC’s Black and LGBTQ communities. There is considerable evidence from public health researchers that criminalization of sex work contributes to community violence, propagates crime, blocks access to public health resources, is an ineffective deterrent to participation in sex work, and is deeply harmful to sex workers.

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"California Voters Have Some Choices on Crime in November"

Michael Rushford has this post at Crime & Consequences. In part:

An initiative addressing theft and drug abuse has qualified for California’s November 5 ballot, along with a ballot measure passed by the Legislature which increases the rights of prison inmates.

Proposition 36, is sponsored by the California District Attorneys Association and is supported by retailers, victims’ groups and most state law enforcement professionals. The measure changes several provisions of California Proposition 47, which converted thefts of $950 or less to misdemeanors, along with drug sales or possession, even if the offender has multiple priors. If adopted, Proposition 36 would strengthen penalties for habitual shoplifters and thieves, allowing an offender convicted of a third theft valued at less than $950 to be charged with a felony and sentenced to up to three years in state prison, depending on his criminal record.

 

"Should police be able to interrogate kids alone? A growing number of states say no"

From NPR, via NADCL's news update:

That day, he didn’t ask for a lawyer, and he did talk. Studies show nearly all juveniles make the same choice: As many as 90 percent waive their Miranda rights. Yet legal experts say children and teenagers don’t understand the consequences of doing so.

Now, some states are working to fix that. In the last three years, at least four states — including California, Maryland, New Jersey and Washington — have passed laws banning police from interrogating children until that child has spoken to a lawyer. Illinois has introduced a bill broadening its protections for juveniles questioned by police, and other states – including New York and Minnesota – have introduced similar bills.

Geistfeld on Scarce Compensatory Resources and the Tort/Crime Relationship

Mark Geistfeld (New York University School of Law) has posted Tort Law in a World of Scarce Compensatory Resources (123 MICHIGAN LAW REVIEW (forthcoming 2025)) on SSRN. Here is the abstract:

 

A number of large corporations facing extensive tort liabilities have gone into bankruptcy, forcing tort claimants to accept pennies on the dollar in satisfaction of their claims. Bankruptcy painfully illustrates the social fact that the compensatory properties of tort law depend on the availability of compensatory resources. Although this feature of tort law is self-evident, no one has adequately analyzed whether it matters for substantive tort doctrine, and if so, how.

. . . . 

 

Accounting for the availability of compensatory resources reveals normative properties of substantive tort law that are often quite different from the ones modern tort theories depict, including the relation between tort law and criminal law and the vital role of deterrence in a rights-based tort system. An adequate account of tort law must comprehend how the scarcity of compensatory resources alters substantive tort doctrine in principled ways.

"Police in a suburban New York county have made their first arrest under a new law banning face masks"

From AP, via NACDL's news update:

Police in the suburbs of New York City made the first arrest under a new local law banning face masks, officials announced Tuesday.

. . . .

The New York Civil Liberties Union, which has criticized the new law, repeated its warning that the mask ban is “ripe for selective enforcement by a police department with a history of aggression and discrimination.”

Disability Rights of New York, a group that advocates for people with disabilities, filed a legal challenge last week arguing that the mask law is unconstitutional and discriminates against people with disabilities.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Stopping Scams Against Consumers: Roadmap for a National Strategy Nick Bourke Independent Date Posted: 24 Jul 2024	213
2.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	188
3.	Abolish Conspiracy Evan D. Bernick Northern Illinois University - College of Law Date Posted: 07 Aug 2024	148
4.	Rights, Reasons, and Culpability in Tort Law and Criminal Law Gregory Antill Columbia Law School Date Posted: 27 Jun 2024	139
5.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024	88
6.	Rethinking the Role of Intentional Wrongdoing in Criminal Law Gregory Antill Columbia Law School Date Posted: 31 Jul 2024 [8th last week]	85
7.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [6th last week]	76
8.	MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT W. David Ball Santa Clara School of Law Date Posted: 08 Aug 2024 [new to top ten]	71
9.	A Specious Form of Judicial Restraint Nelson Lund George Mason University - Antonin Scalia Law School Date Posted: 02 Jul 2024	68
10.	From Visibility to Shadows: The Impact of Police Discretion on Prostitution in Response to Legal Changes Yutian An, Yingjie Fan, Xuancheng Qian and Leo Yang Yang Harvard University - Harvard Law School, Princeton University, Princeton University and Stanford University - Centre on China’s Economy and Institutions Date Posted: 28 Jun 2024	65

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	AI-Assisted Police Reports and the Challenge of Generative Suspicion Andrew Guthrie Ferguson American University Washington College of Law Date Posted: 20 Aug 2024 [5th last week]	435
2.	Loper Bright and the Great Writ: Will the New Constitutionalists End "Treason to the Constitution," Restore the Judicial Power, and Make the Law of the Land Supreme Again? [Forthcoming in Columbia Human Rights Law Review, 2024] James S. Liebman and Anthony Amsterdam Columbia University - Law School and New York University School of Law Date Posted: 11 Jul 2024 [4th last week]	311
3.	Prosecutor Transparency Project: Racial Disparities Study (Washtenaw County, Michigan) Grady Bridges and J.J. Prescott Independent and University of Michigan Law School Date Posted: 31 Dec 2023	307
4.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024 [6th last week]	188
5.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024 [8th last week]	88
6.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [9th last week]	76
7.	MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT W. David Ball Santa Clara School of Law Date Posted: 08 Aug 2024 [new to top ten]	71
8.	Urgent Issues and Prospects on Investigative Interviews with Children and Adolescents Victoria Talwar, Angela Crossman, Stephanie Block, Sonja Brubacher, Rachel Dianiska, Ana Karen Espinosa Becerra, Gail S. Goodman, Michael Lamb, Kamala London, David La Rooy, more... McGill University, City University of New York (CUNY) - John Jay College, University of Massachusetts Lowell, Griffith University, University of California, Irvine, University of Ottawa, University of California, Davis, University of Cambridge, University of Toledo, University of Otago Date Posted: 06 Aug 2024 [new to top ten]	57
9.	The Victims' Rights Mismatch Lee Kovarsky University of Texas at Austin, School of Law Date Posted: 12 Aug 2024 [new to top ten]	51
10.	A Lifeline During Custodial Interrogations? The Right to Counsel and Reflections on R. v. Dussault and R. v. Lafrance Amar Khoday University of Manitoba - Faculty of Law Date Posted: 03 Jul 2024 [new to top ten]	50

Pyle et al. on Parking Ticket Enforcement

Benjamin Pyle, James Reeves, and Elizabeth Luh (Boston University - School of Law, University of Michigan at Ann Arbor and University of Houston - Department of Economics) have posted Agency Incentives and Disparate Revenue Collection: Evidence from Chicago Parking Tickets on SSRN. Here is the abstract:

 

We leverage a sharp 2012 parking fine increase for failing to purchase vehicle registration to examine disparate ticketing patterns across enforcement agencies in Chicago. Using an event-study framework, we find that Chicago police increased their enforcement of car registration non-compliance in Black relative to non-Black neighborhoods, with no observed disparate response for non-police enforcement agencies. This disparity is unexplained by differences in non-compliance and is instead driven by departmental revenue incentives and lower marginal search costs in Black neighborhoods. Disparate enforcement also exacerbated existing gaps in financial instability, including increased rates of ticket non-payment and bankruptcy filings in Black neighborhoods.

"US police use force on 300,000 people a year, with numbers rising since George Floyd: ‘relentless violence’"

From The Guardian, via NACDL's news update:

Mapping Police Violence, a non-profit research group that tracks killings by US police, launched a new database, policedata.org, on Wednesday cataloging non-fatal incidents of police use of force, including stun guns, chemical sprays, K9 dog attacks, neck restraints, beanbags and baton strikes.

The database features incidents from 2017 through 2022, compiled from public records requests in every state. The findings, the group says, suggest that despite widespread protests against police brutality following the murder of George Floyd in 2020, overall use of force has remained steady since then – and in many jurisdictions, has increased.

 

The data builds on past reports that found US police kill roughly 1,200 people each year, or three people a day, a death toll that has crept up every year and dramatically exceeds rates in comparable nations. The nonfatal force statistics and accompanying report illustrate how the killings are just a small fraction of broader police violence and injuries caused by law enforcement.

Segate on Biology and Criminal Law

Riccardo Vecellio Segate (University of Groningen - Faculty of Economics and Business) has posted Exposing, Reversing, and Inheriting Crimes as Traumas from the Neurosciences to Epigenetics: Why Criminal Law Cannot Yet Afford A(nother) Biology-induced Overhaul

Criminal Justice Ethics on SSRN. Here is the abstract:

 

In criminal proceedings, offenders are sentenced based on doctrines of culpability and punishment that theorize why they are guilty and why they should be punished. Throughout human history, these doctrines have largely been grounded in legal-policy constructions around retribution, safety, deterrence, and closure, mostly derived from folk psychology, natural philosophy, sociocultural expectations, public-order narratives, and common sense. On these premises, justice systems have long been designed to account for crimes and their underlying intent, with experience and probabilistic assumptions shaping theoretical discourses on the nature of crimes and offenders’ punishability. As scientific discoveries, inventions, and methodologies progressively developed to refine such doctrines and displace long-held assumptions, criminal courtrooms have increasingly witnessed counsels and judges relying on scientific evidence to submit, dispute, or validate claims. For instance, over the last century, criminal courtrooms have selectively admitted neuroscientific models, exams, and insights claiming to revolutionize our understanding of who is culpable and deserving of punishment. Most recently, advancements in epigenetics have promised even more profound challenges to long-standing criminal law doctrines. This article examines the reasons reversibility and inheritability of epigenetic markers might warrant revising culpability and punishment and concludes that epigenetic findings are not yet robust enough to justify such revisions.