CrimProf Blog

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

Thursday, August 17, 2017

King on Criminal Appeals

King nancyNancy J. King (Vanderbilt University - Law School) has posted Criminal Appeals (Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., Forthcoming)) on SSRN. Here is the abstract:
 
This chapter is part of a comprehensive report on criminal justice reform. It examines three costly and persistent problems plaguing judicial review in state criminal cases: its failure to correct wrongful convictions, the absence of supervision of lower courts’ handling of certain categories of issues of particular public concern, and unnecessary delay. The chapter collects research and outlines reforms to provide more efficient review, address error-correction deficiencies exposed by research into cases of wrongful conviction, and fill gaps in appellate oversight of the plea-negotiation process as well as errors that lead to acquittal.

August 17, 2017 | Permalink | Comments (0)

Gilad on Childhood Exposure to Crime and Violence

Gilad michalMichal Gilad (University of Pennsylvania Law School) has posted The Triple-C Impact: Responding to Childhood Exposure to Crime and Violence on SSRN. Here is the abstract:
 
The article is the first to take an inclusive look at the monumental problem of crime exposure during childhood, which is estimated to be one of the most damaging and costly public health and public safety problem in our society today. It takes-on the challenging task of ‘naming’ the problem by coining the term Comprehensive Childhood Crime Impact or in short the Triple-C Impact. Informed by scientific findings, the term embodies the full effect of direct and indirect crime exposure on children due to their unique developmental characteristics, and the spillover effect the problem has on our society as a whole.

Over the past decade mounting scientific evidences demonstrate the devastating effect of crime exposure to child development and life outcomes.

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August 17, 2017 | Permalink | Comments (0)

Marsavelski & Braithwaite on The Best Way to Rob a Bank

Aleksandar Marsavelski and John Bradford Braithwaite (University of Zagreb - Faculty of Law and Australian National University (ANU) - Research School of Social Sciences (RSSS)) have posted The Best Way to Rob a Bank on SSRN. Here is the abstract:
 
Cohen and Machalek’s (1988) evolutionary ecological theory of crime explains why obscure forms of predation can be the most lucrative. The lure of white-collar crime takes off through the anomic conditions of warfare and the ‘creative destruction’ of capitalism. Edwin Sutherland explained that it is better to rob a bank at the point of a pen than the point of a gun. The Savings and Loans scandal suggested ‘the best way to rob a bank is to own it’. Lure constituted by the anomie of warfare and transition to capitalism in Yugoslavia revealed that the best way to rob a bank is to control the regulatory system. It is not to own a bank but to control a central bank. This makes possible theft not only of massive chunks of the people’s money, but of all the money in all the wallets of the people, in the safes of all the businesses and all the banks of a society. The criminological imagination must attune to anomie created by both boom and bust in capitalism, and to the evolutionary ecology of lure.

August 17, 2017 | Permalink | Comments (0)

Wednesday, August 16, 2017

Oberg on EU Criminal Law

Jacob Öberg (Örebro University) has posted Limits to EU Powers: A Case Study of EU Regulatory Criminal Law- Chapter 1 (author's version) (Hart Publishing (Hart Studies in European Criminal Law) 2017) on SSRN. Here is the abstract:
 
Pursuant to the precepts of EU law, EU policy-makers are bound to ensure that any EU legislation must fall within the remit of the EU's competences. This monograph looks at this highly contested issue, with particular reference to European Union criminal law. It looks at the powers enjoyed by the EU to impose criminal sanctions to suggest mechanisms by which legislative powers could be kept in check. The book argues that the main responsibility for providing checks against the exercise of EU power lies with the EU judiciary. It argues that the most effective form of review is procedural and through the case study of sanctions, provides the basis for such a review. Innovative, engaging and rigorous, this is an important publication both in the field of European criminal and constitutional law. Chapter 1 introduces the problem of EU competences, identifies the pressing questions in EU law on competences after Lisbon. Subsequent to this the chapter account for the key argument of the book and how the argument will be developed. It finally explains the scope of the book and the choice of the case study of EU criminal law.

August 16, 2017 | Permalink | Comments (0)

De Sa & Amarshi on Impeachment by Illegally Seized Evidence in Canada

Christopher De Sa and Hafeez S Amarshi (Public Prosecution Service of Canada and Public Prosecution Service of Canada) have posted Reconsidering Calder: Re-Evaluating the Rule of Absolute Exclusion in the Context of Real Evidence on SSRN. Here is the abstract:
 
Since Calder the jurisprudence has maintained that the exclusion of evidence is final for all purposes including the impeachment of the accused. The current approach, however, fails to give due consideration to the significance of the truth-seeking function of a trial or the Court’s ongoing role in maintaining the integrity of the administration of justice. While the exclusion of evidence properly precludes the Crown from relying on that evidence to prove its case, facts otherwise excluded cannot be ignored or forgotten when the accused chooses to testify. The accused’s choice to testify requires his evidence be considered and assessed in the context of all relevant facts, whether those facts are excluded or not. Anything short of a full exploration of the accused’s evidence in the context of all relevant facts invites the accused to perpetrate a fraud on the Court, and inevitably undermines the administration of justice.

August 16, 2017 | Permalink | Comments (0)

Tuesday, August 15, 2017

Wheeler et al. on Housing Demolitions and Crime

Andrew Palmer WheelerDae-Young Kim and Scott W. Phillips (University of Texas at Dallas - School of Economic, Political and Policy Sciences, University at Buffalo, SUNY and State University of New York (SUNY) - Department of Criminal Justice) have posted The Effect of Housing Demolitions on Crime in Buffalo, NY on SSRN. Here is the abstract:
 
Objectives: From 2010 through 2015, the city of Buffalo demolished over 2,000 residences. This study examines whether those demolitions resulted in crime reductions.

Methods: Analysis was conducted at micro places matching demolished parcels to comparable control parcels with similar levels of crime. In addition, spatial panel regression models were estimated at the census tract and quarterly level, taking into account demographic characteristics of neighborhoods. 

Results: We find that at the micro place level, demolitions cause a steep drop in reported crime at the exact parcel, and result in additional crime decreases at buffers of up to 1,000 feet away. At the census tract level, results indicated that demolitions reduced Part 1 crimes, but the effect was not statistically significant across different models.

Conclusions: While concerns over crime and disorder are common for vacant houses, the evidence that housing demolitions are an effective crime reduction solution is only partially supported by the analyses here. Future research should compare demolitions in reference to other neighborhood revitalization processes.

August 15, 2017 | Permalink | Comments (0)

Kramer on Interrogation Torture and the Death Penalty

Matthew H. Kramer (Churchill College, Cambridge University) has posted On Political Morality and the Conditions for Warranted Self-Respect on SSRN. Here is the abstract:
 
In my recent book, "Liberalism with Excellence", I have expounded at length a conception of warranted self-respect. That conception, which draws heavily though far from uncritically on the scattered passages about self-respect in the writings of John Rawls, is central to my defense of a variety of liberalism that combines and transfigures certain aspects of Rawlsianism and perfectionism. However, it is also central to the positions taken in some earlier books of mine on capital punishment and torture. Although my understanding of warranted self-respect was presented far more briefly or obliquely in each of those earlier books than in "Liberalism with Excellence", it in fact underlies both my limited defense of the death penalty and my absolutist insistence that the use of interrogational torture is never morally permissible. The present paper will recount the gist of my conception of warranted self-respect and will then explain how that conception figures pivotally in my ruminations on the diverse matters of political morality that have been mentioned here.

August 15, 2017 | Permalink | Comments (0)

King on The Public Defender as International Transplant

King johnJ.D. King (Washington and Lee University) has posted The Public Defender as International Transplant (University of Pennsylvania, Journal of International Law, Vol. 38, Iss. 3, Forthcoming) on SSRN. Here is the abstract:
 
The last quarter century has seen countries across Latin America and other parts of the world dramatically transition from an inquisitorial criminal justice system to an adversarial system. As a part of this shift in adjudication, these systems have adopted a key component of the adversarial system: the public defender. But while the formal and structural changes in these systems have been profound, the specter of inquisitorialism haunts the public defender organizations and has impeded the progress that reformers had envisioned.

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August 15, 2017 | Permalink | Comments (0)

Monday, August 14, 2017

Justus & Conti on Imprisonment of Second-Intance Convicts

Marcelo Justus and Thomas Victor Conti (Universidade Estadual de Campinas (UNICAMP) - Instituto de Economia and Universidade Estadual de Campinas (UNICAMP), Students) have posted An Economic Approach on Imprisonment of Second-Instance Convicts: The Case of Brazil (Economic Analysis of Law Review 8 (1): 277–90) on SSRN. Here is the abstract:
 
On October 5, 2016, the Brazilian Federal Supreme Court decided that imprisonment of convicts in second-instance before the res judicata does not affect article 283 of the Penal Code. The objective of this study is to analyze, without judging the constitutionality of the novel juridical act, the hypothesis that “the possibility of imprisonment of convicts in second instance was a correct decision to reduce crime and its social cost”. This hypothesis is not rejected pursuant to the economic theory of crime.

August 14, 2017 | Permalink | Comments (0)

Bamzai & Goldfoot on A Trespass Framework for Hacking

Aditya Bamzai and Josh Goldfoot (University of Virginia School of Law and U.S. Department of Justice - Computer Crime & Intellectual Property Section, Criminal Division) have posted A Trespass Framework for the Crime of Hacking (84 George Washington Law Review 1477 (2016)) on SSRN. Here is the abstract:
 
Computer crime statutes prohibit accessing a computer without “authorization.” In recent years, this element has attracted considerable controversy, with some courts expressing concern that “authorization” is so indeterminate that the Computer Fraud and Abuse Act (“CFAA”) is void for vagueness. This Article argues that “authorization” under the CFAA has the same meaning as authorization under criminal physical trespass laws. This approach is more straightforward than the alternatives currently offer, and it aligns with Congress’s announced intention to bring physical trespass law to computer networks. Although interpreting “authorization” under the CFAA can be difficult, near-identical difficulties also arise in the context of physical trespass. As a result, questions under the CFAA can be resolved by looking to the resolution of similar questions in the context of physical trespass. In addition, because both physical trespass and the CFAA require proof that the defendant knew his access was unauthorized, the merits of a void-for-vagueness challenge to computer trespass rise and fall with the merits of a similar challenge to physical trespass. Given the pedigree of the latter, a constitutional challenge to the former seems questionable.

August 14, 2017 | Permalink | Comments (0)

Galvin et al. on Victim Compensation Policy and White Collar Crime

Miranda A. GalvinThomas LoughranSally S Simpson and Mark A. Cohen (University of Maryland, College of Behavioral and Social Sciences, Department of Criminology & Criminal Justice, University of Maryland, Criminology and Criminal Justice and Vanderbilt University - Strategy and Business Economics) have posted Victim Compensation Policy and White Collar Crime: Public Preferences in a National Willingness to Pay Survey on SSRN. Here is the abstract:
 
We use survey data from a nationally representative sample to explore public support for government-run victim compensation programs for financial fraud, consumer fraud, identity theft, and burglary. We use contingent valuation (willingness to pay) methodology to infer preferences for compensation programs, and also explore predictors of those preferences. Overall, findings suggest that the public strongly supports the implementation of victim compensation programs. However, our results also indicate that this support may be driven in part by perceptions of benefiting from this program directly in the future. Additionally, a small but notable minority of respondents exhibit preferences for programs without compensation. Our findings suggest that the general public is supportive of restitutive compensation programs, not only as paid for by offenders, but by the government. We suggest that policy makers may embrace some principles of restorative justice for white collar crimes, which may otherwise be more financially damaging than traditional crimes.

August 14, 2017 | Permalink | Comments (0)

Ram on Innovating Criminal Justice

Ram natalieNatalie Ram (University of Baltimore - School of Law) has posted Innovating Criminal Justice (Northwestern University Law Review, Forthcoming) on SSRN. Here is the abstract:
 
From secret stingray devices that can pinpoint a suspect’s location to source code secrecy surrounding alcohol breath test machines, advanced forensic DNA analysis tools, and recidivism risk statistic software, the use of privately developed criminal justice technologies is growing. So too is a concomitant pattern of trade secret assertion surrounding those technologies. This Article charts the role of private law secrecy in shielding criminal justice activities, demonstrating that such secrecy is pervasive, problematic, and yet ultimately unnecessary for the production of well-designed criminal justice tools.

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August 14, 2017 | Permalink | Comments (0)

Sunday, August 13, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors

Independent
141
2.

Democratizing Criminal Justice Through Contestation and Resistance

Brooklyn Law School
118
3.

Plea Agreements As Constitutional Contracts

University of South Carolina School of Law
109
4.

Henry J. Friendly: Designed to Be a Great Federal Judge

Liberty University School of Law
94
5.

The Jury Sunshine Project: Jury Selection Data as a Political Issue

Wake Forest University - School of Law, Wake Forest University Law School and Wake Forest University - School of Law
88
6.

Law & Neuroscience: What, Why, and Where to Begin

Vanderbilt University - Law School & Dept. of Biological Sciences and University of Minnesota Law School
84
7.

Defense Counsel and Public Defense

University of Michigan Law School
84
8.

Carpenter v. United States and the Fourth Amendment: The Best Way Forward

University of Oklahoma College of Law
74
9.

A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age

Western Carolina University and Western Carolina University
73
10.

Revising State Post-Conviction Relief Statutes to Cover Convictions Resting on Subsequently Invalidated Expert Testimony

University of California, Davis - School of Law
71

August 13, 2017 | Permalink | Comments (0)

Saturday, August 12, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Democratizing Criminal Justice Through Contestation and Resistance

Brooklyn Law School
116
2.

Should Domestic Violence Be Decriminalized?

University of Maryland Francis King Carey School of Law
116
3.

The Law of Time Travel

New York University School of Law
105
4.

Equal Moral Membership: Naz Foundation and the Refashioning of Equality

Yale University - Law School
97
5.

Law & Neuroscience: What, Why, and Where to Begin

Vanderbilt University - Law School & Dept. of Biological Sciences and University of Minnesota Law School
81
6.

Colonial Criminal Law and Other Modernities: European Criminal Law in the Nineteenth and Twentieth Century

University of Toronto - Faculty of Law
71
7.

Ministers of Justice and Mass Incarceration

Pace University School of Law and Hofstra University - Maurice A. Deane School of Law
69
8.

Virtual Reality Intrusion

University of Haifa, Faculty of Law
61
9.

FTC Regulation of Cybersecurity and Surveillance

University of California, Berkeley - School of Information
60
10.

Individual Accountability for Corporate Crime

University of Toledo College of Law
58

August 12, 2017 | Permalink | Comments (0)

Friday, August 11, 2017

Grunwald on Open File Discovery

Grunwald benBen Grunwald (Duke University School of Law) has posted The Fragile Promise of Open File Discovery (Connecticut Law Review, Vol. 49, No. 3, February 2017) on SSRN. Here is the abstract:
 
Under traditional rules of criminal discovery, defendants are entitled to little prosecutorial evidence and are thus forced to negotiate plea agreements and prepare for trial in the dark. In an effort to expand defendants’ discovery rights, a number of states have recently enacted “open-file” statutes, which require the government to share the fruits of its investigation with the defense. Legal scholars have widely supported these reforms, claiming that they level the playing field and promote judicial efficiency by decreasing trials and speeding up guilty pleas. But these predictions are based largely on intuition and anecdotal data without extended theoretical analysis or systematic empirical testing.

This Article aims to fill both of these gaps in the literature. It begins by developing a dynamic theory of the effects of open-file on the behavior of police, prosecutors, defense attorneys, and defendants.

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August 11, 2017 | Permalink | Comments (0)

Hoofnagle on FTC Regulation of Cybersecurity and Surveillance

Chris Jay Hoofnagle (University of California, Berkeley - School of Information) has posted FTC Regulation of Cybersecurity and Surveillance (in The Cambridge Handbook of Surveillance Law (David Gray and Stephen Henderson, eds)(Cambridge University Press 2017)) on SSRN. Here is the abstract:
 
The Federal Trade Commission (FTC) is the United States’ chief consumer protection agency. Through its mandate to prevent unfair and deceptive trade practices, it both regulates surveillance and creates cybersecurity law. This chapter details how the FTC regulates private-sector surveillance and elucidates several emergent properties of the agency’s activities. First, private-sector surveillance shapes individuals’ reasonable expectations of privacy, and thus regulation of the private-sector has effects on the government as surveillant. The FTC’s activities not only serve dignity interests in avoiding commercial inference in one’s life, they also affect citizens’ civil liberties posture with the state. Second, surveillance can make companies directly liable (for intrusive web monitoring, for tracking people offline, and for installing malware) or indirectly liable (for creating insecure systems, for using deception to investigate, and for mediating the surveillance of others) under the FTC Act. Third, the FTC’s actions substitute plaintiffs’ litigation for privacy, as the class action is burdened in novel ways. Fourth, the FTC’s actions increase the quality of consent necessary to engage in surveillance, and in so doing, the FTC has made some kinds of surveillance practically impossible to implement legally. Finally, the FTC’s actions make companies more responsible for their surveillance technologies in several ways—by making software vendors liable for users’ activities, by imposing substantive security duties, and by narrowing internet intermediary immunity.
 

August 11, 2017 | Permalink | Comments (0)

Bagaric & Gopalan on Justice Scalia's Eighth Amendment Jurisprudence

Mirko Bagaric and Sandeep Gopalan (Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School and Deakin University, Geelong, Australia - Deakin Law School) have posted Sound Principles, Undesirable Outcomes: Justice Scalia's Paradoxical Eighth Amendment Jurisprudence (Akron Law Review, Vol. 50, Iss. 2, Article 5, 2017) on SSRN. Here is the abstract:
 
Justice Scalia is renowned for his conservative stance on the Eighth Amendment and prisoners’ rights Justice Scalia held that the Eighth Amendment incorporates no proportionality requirement of any nature regarding the type and duration of punishment, which the state can inflict on criminal offenders. Justice Scalia has also been labelled as “one of the Justices least likely to support a prisoner’s legal claim,” and as adopting, because of his originalist orientation, “a restrictive view of the existence of prisoners’ rights.” The criticism of Justice Scalia’s approach to the Eighth Amendment, so far as it relates to the harshness of criminal sanctions, is wide-ranging and sometimes verging on the disparaging. The overwhelming weight of prevailing sentiment is that Justice Scalia was a foe of Criminal Law and Procedure to the extent that this is associated with a moderate or lenient approach to the punishment of offenders. A closer examination of the seminal judgments in these areas and the jurisprudential nature of the principle of proportionality and rights (including prisoners’ rights) arguably put this characterization in a different light. While Justice Scalia may have resisted a move to less harsh sentencing and expansive rights to prisoners, there is an underlying coherence to some of his key decisions that is underpinned by the provisions he was applying and, even more so, the logical and normative contents or vagueness of the concepts under consideration.

August 11, 2017 | Permalink | Comments (0)

Robbins & Litton on Crime, Punishment, and Causation

Philip Robbins and Paul Litton (University of Missouri - Department of Philosophy and University of Missouri School of Law) have posted Crime, Punishment, and Causation: The Effect of Etiological Information on the Perception of Moral Agency (Psychology, Public Policy, and Law (Forthcoming)) on SSRN. Here is the abstract:
 
Moral judgments about a situation are profoundly shaped by the perception of individuals in that situation as either moral agents or moral patients (Gray & Wegner, 2009; Gray, Young, & Waytz, 2012). Specifically, the more we see someone as a moral agent, the less we see them as a moral patient, and vice versa. As a result, casting the perpetrator of a transgression as a victim tends to have the effect of making them seem less blameworthy (Gray & Wegner, 2011). Based on this theoretical framework, we predicted that criminal offenders with a mental disorder that predisposes them to antisocial behavior would be judged more negatively when the disorder is described as having a genetic origin than when it is described as environmentally caused, as in the case of childhood abuse or accident. Further, we predicted that some environmental explanations would mitigate attributions of blame more than others, namely, that offenders whose disorder was caused by childhood abuse (intentional harm) would be seen as less blameworthy than offenders whose disorder is caused by an unfortunate accident (unintentional harm). Results from two vignette-based studies designed to test these predictions, conducted with participants recruited from Amazon Mechanical Turk (N = 244 and N = 387, respectively), confirmed the first prediction but not the second. Implications of this research for three areas — the psychology of moral judgment, philosophical debates about moral responsibility and determinism, and the practice of the law — are discussed in the sequel.

August 11, 2017 | Permalink | Comments (0)

Bagaric & Wolf on Sentencing by Computer

Mirko Bagaric and Gabrielle Wolf (Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School and Deakin Law School) have posted Sentencing by Computer: Enhancing Sentencing Transparency and Predictability, and (Possibly) Bridging the Gap between Sentencing Knowledge and Practice (25(4) George Mason Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Computer technology is rapidly infiltrating and changing many aspects of the law. Judicial decision-making has, however, remained largely impervious to technological developments. Sentencing is one of the most controversial, complex and dynamic legal areas. Sentencing law is also fundamentally broken and has resulted in a mass incarceration crisis, which is the most serious sociolegal problem currently afflicting the United States. Despite this, it is also ostensibly one of the areas of law that is most amenable to automated decisionmaking. This is because the relevant variables that inform sentencing decisions are normally clear, especially in circumstances where an offense attracts a presumptive or fixed penalty. In this Article, we examine the desirability of computers, rather than judges, making sentencing decisions.

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August 11, 2017 | Permalink | Comments (0)

Thursday, August 10, 2017

Borlini on The Anti-Corruption Framework

Leonardo S. Borlini (Bocconi University, Angelo Sraffa Department of Legal Studies) has posted The Emergence of the International Anti-Corruption Framework and Its Domestic Implementation: The Case of Italy on SSRN. Here is the abstract:
 
The past twenty years have seen unprecedented international initiatives aimed at combating corrupt practices. Over the same period, Italy has ratified and implemented within its legal system five international anti-corruption treaties and amended its domestic legislation on different occasions. However, despite considerable efforts corruption remains a serious challenge in the country. With particular reference to the afore-mentioned conventions, this article explores the main international rules on criminalisation and prevention of corruption in order to, eventually, investigate the achievements and shortcomings of the Italian legislation in light of such provisions.

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August 10, 2017 | Permalink | Comments (0)