Criminal Law Commons^™

Criminal Procedure, The Police, And The Wire As Dissent, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Personal Benefit Has No Place In Misappropriation Tipping Cases, Merritt B. Fox, George N. Tepe

Faculty Scholarship

The Supreme Court’s decision in Salman v. United States left unanswered an important issue concerning the reach of Rule 10b-5’s prohibitions with respect to trades based on a tip of material inside information: in cases based on the misappropriation theory, is it necessary to show that the tipper enjoyed a personal benefit of which the trader was aware? The personal benefit test was originally developed in the context of tipping cases based on the classical theory of insider trading. The Supreme Court in Salman explicitly said that it was not reaching the matter of whether the test should be extended …

Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these …

Aggressive Policing And The Educational Performance Of Minority Youth, Joscha Legewie, Jeffrey A. Fagan

Faculty Scholarship

An increasing number of minority youth are confronted with the criminal justice system. But how does the expansion of police presence in poor urban communities affect educational outcomes? Previous research points at multiple mechanisms with opposing effects. This article presents the first causal evidence of the impact of aggressive policing on the educational performance of minority youth. Under Operation Impact, the New York Police Department (NYPD) saturated high crime areas with additional police officers with the mission to engage in aggressive, order maintenance policing. To estimate the effect, we use administrative data from about 250,000 adolescents aged 9 to 15 …

Illegal Predicate Searches And Tainted Warrants After Heien And Strieff, Kit Kinports

Faculty Scholarship

A long-standing debate has surrounded the relationship between two features of the Fourth Amendment's exclusionary rule - the fruits of the poisonous tree doctrine and the good-faith exception - in cases where the evidence used to secure a search warrant was obtained in violation of the defendant's constitutional rights. Some judges and scholars maintain that the fruits of the poisonous tree doctrine takes precedence in such "tainted warrant" cases, leading to the suppression of any evidence seized in executing the warrant unless the warrant was supported by probable cause independent of the illegal predicate search. By contrast, others believe that …

The Right To Two Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

Public Requitals: Corrective, Retributive, And Distributive Justice, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Prosecution Of Child Pornography—The One-Eyed Judge By Michael A. Ponsor: A Book Review, Beth Cohen, Pat Newcombe

Faculty Scholarship

The safeguarding and protection of children in society is crucial. Yet, children remain a vulnerable population; they are abused, neglected, trafficked, and exploited in numerous ways. In his new book, The One-Eyed Judge, Michael Ponsor, Senior United States District Court Judge for the District of Massachusetts, Western Division, who has presided over numerous child pornography cases, explores the complexities and legal implications of child pornography and exploitation.

Radical Feminist Harms On Sex Workers, I. India Thusi

Faculty Scholarship

Sex work has long been a site for contesting womanhood, sexuality, race, and patriarchy. Its very existence forces us to examine how we think about two very dirty subjects-money and sex. The radical feminist literature highlights the problems with sex work and often describes it as a form of "human trafficking" and violence against women. This influential philosophy underlies much of the work in human trafficking courts, was evident in a letter signed by several Hollywood starlets in opposition to Amnesty International's support for decriminalization, and is the premise of several movies and documentaries about "sex slavery." Radical feminists aim …

Decoding The Impossibility Defense, Daniel B. Yeager

Faculty Scholarship

Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated over 3000 criminal cases as on point, 1200 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation.

Although it is now hornbook that impossible attempts are …

Unmarked? Criminal Record Clearing And Employment Outcomes, Jeffrey Selbin, Justin Mccrary, Joshua Epstein

Faculty Scholarship

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively low-level misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential.

In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We studied a random sample of participants in one such …

The Intersection Between Young Adult Sentencing And Mass Incarceration, Joshua Gupta-Kagan

Faculty Scholarship

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system less severely than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in-depth connections between the two.

Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults …

The Ideological Roots Of America's Market Power Problem, Lina M. Khan

Faculty Scholarship

Mounting research shows that America has a market power problem. In sectors ranging from airlines and poultry to eyeglasses and semiconductors, just a handful of companies dominate. The decline in competition is so consistent across markets that excessive concentration and undue market power now look to be not an isolated issue but rather a systemic feature of America’s political economy. This is troubling because monopolies and oligopolies produce a host of harms. They depress wages and salaries, raise consumer costs, block entrepreneurship, stunt investment, retard innovation, and render supply chains and complex systems highly fragile. Dominant firms’ economic power allows …

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

The Systems Fallacy: A Genealogy And Critique Of Public Policy And Cost-Benefit Analysis, Bernard Harcourt

Faculty Scholarship

This essay identifies the systems fallacy: the mistaken belief that systems-analytic decision-making techniques, such as cost-benefit or public policy analysis, are neutral and objective, when in fact they normatively shape political outcomes. The systems fallacy is the mistaken belief that there could be a nonnormative or scientific way to analyze and implement public policy that would not affect political values. That pretense is mistaken because the very act of conceptualizing and defining a metaphorical system, and the accompanying choice-of-scope decisions, constitute inherently normative decisions that are value laden and political in nature. The ambition of decision theorists to render policy …

Book Review: Justice Triage, Milan Markovic

Faculty Scholarship

Benjamin Barton and Stephanos Bibas’s new book, Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law, is an eloquent exemplar of the deregulation literature. What sets Rebooting Justice apart from other works in the genre is that Barton and Bibas do not treat deregulation as a panacea. Their starting point is that Americans are not well served by lawyers’ monopoly over the legal services market, but they do not envision a world in which every legal problem is resolved ably and efficiently. Their goal is much more modest: a less complex legal system in which lawyer …

The Technology Requirements Of The First Electronic Monitoring Agreement In U.S. For Zappers, Richard Thompson Ainsworth, Robert Chicoine

Faculty Scholarship

On August 30, 2017, a plea was entered in the case of case of State of Washington v. Wong, Wash. Super. Ct., No. 16-1-00179-0, and as a result the first electronic monitoring agreement of sales transactions in the US (the “Monitoring Agreement”) was legislatively imposed on a retail business.

The Monitoring Agreement was negotiated between the State of Washington Department of Revenue (the “WA DOR”) and the taxpayer over a period of several months and is comprised of two parts: the basic agreement, which covered the obligations and rights of the parties, and an appendix, which defines the scope of …

The Problem With Inference For Juvenile Defendants, Jenny E. Carroll

Faculty Scholarship

Much of criminal law relies on proof by inference. In criminal law, fact finders untangle not only what happened, but why it happened. It is answering the “why” question that places an act and its result on the legal spectrum of liability. To reach that answer, the fact finder must engage in an interpretive act, considering not only what can be seen or heard, but the significance of that testimony or physical evidence in real world contexts – the world in which they occurred but also the fact finder’s own world. Recent developments in neuroscience suggest that in the context …

Bathroom Laws As Status Crimes, Stephen Rushin, Jenny E. Carroll

Faculty Scholarship

A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals.

By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize them. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would …

Corporate Deferred Prosecution As Discretionary Injustice, Peter Reilly

Faculty Scholarship

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate …

The Constitution Of Police Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

The First Real-Time Blockchain Vat - Gcc Solves Mtic Fraud, Richard Thompson Ainsworth, Musaad Alwohaibi

Faculty Scholarship

Following years of study the Gulf Cooperation Council (GCC) appears ready to adopt the recommendations of the International Monetary Fund (IMF) and put in place a tax system that will stabilize revenue. A value added tax (VAT) and corporate income tax (CIT) are considered. A VAT Framework Agreement, that functions like the VAT Directive in the EU, has been agreed.

Although new, the GCC VAT is very worthy of attention. From a tax policy perspective, it is making notable improvements to EU VAT design. The GCC VAT is (potentially) the world’s first real-time, blockchain-secured, multi-jurisdictional VAT. This is a remarkable …

The Prophylactic Fifth Amendment, Tracey Maclin

Faculty Scholarship

Before Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced …

Fighting Fines & Fees: Borrowing From Consumer Law To Combat Criminal Justice Debt Abuses, Neil L. Sobol

Faculty Scholarship

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in …

Too Vast To Succeed, Miriam Baer

Faculty Scholarship

No abstract provided.

Searching Places Unknown: Law Enforcement Jurisdiction On The Dark Web, Ahmed Ghappour

Faculty Scholarship

The use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law. Criminal actors who use the dark web (for instance, to commit crimes or to evade authorities) obscure digital footprints left behind with third parties, rendering existing surveillance methods obsolete. In response, law enforcement has implemented hacking techniques that deploy surveillance software over the Internet to directly access and control criminals’ devices. The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote …

Gateway Crimes, Murat C. Mungan

Faculty Scholarship

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful drugs. This Article presents a theory of “gateway crimes,” which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses. A typical gateway crime is an act which is punished lightly, but because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People …

Bail Nullification, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Faculty Scholarship

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can …

"Gambling, Raffles, Door Prizes, And Competitions" From The Pop Culture Business Handbook For Cons And Festivals, Jon Garon

Faculty Scholarship

This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.Games of chance are highly regulated activities, whereas bona fide competitions are generally left unregulated. Both are big businesses. Competitions, drafts, and other events help support the popularity of trading card games. Many nonprofit organizations take advantage of their charitable status to raise funds through various indirect strategies, including raffles, bingo, games of chance, and competitions. For the games of chance, it …