CrimProf Blog

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

Monday, June 18, 2018

Opinion holding probable cause not to bar claim that arrest motivated by official policy to retaliate against speech

Justice Kennedy delivered the opinion of the Court in Lozman v. Riviera Beach. Justice Thomas dissented.

June 18, 2018 | Permalink | Comments (0)

Sunday, June 17, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Consensus Myth in Criminal Justice Reform

University of Colorado Law School
323
2.

Pakistani Blasphemy Law between Hadd and Siyasah: A Plea for Reappraisal of the Ismail Qureshi Case

International Islamic University, Islamabad
201
3.

Too High a Price 2: Move on to Where?

University of Denver Sturm College of Law, University of Denver Sturm College of Law, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver - Sturm College of Law, Students, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project and University of Denver Sturm College of Law - Homeless Advocacy Policy Project
150
4.

Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts

Stanford Center for Law and History
130
5.

The Expansion of Child Pornography Law

University of North Carolina School of Law
127
6.

Against Life Without Parole

Georgetown University
116
7.

Buggery and Parliament, 1533-2017

University of York
109
8.

If Embryos and Fetuses Have Rights

University of California, Irvine School of Law
107
9.

The Science and Law Underlying Post-Conviction Challenges to Shaken Baby Syndrome Convictions: A Response to Professor Imwinkelried

University of Wisconsin Law School and Seton Hall University School of Law
103
10.

American Evil: A Response to Kleinfeld on Punishment

Northwestern University School of Law
102

June 17, 2018 | Permalink | Comments (0)

Saturday, June 16, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Opinion on the Constitutionality of Robert Mueller's Appointment

Northwestern University - Pritzker School of Law
3,895
2.

The Writ-of-Erasure Fallacy

Stanford Law School
190
3.

What to Expect When You Are Arrested: A Guide to Navigating for Unhoused Defendants

Seattle University, School of Law, Students, Seattle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law
167
4.

Challenging the Punitiveness of 'New-Generation' SORN Laws

Florida State University - College of Law
151
5.

Relative Plausibility and its Critics

Northwestern University Law School and University of Alabama School of Law
148
6.

Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts

Stanford Center for Law and History
130
7.

Privacy and the Criminal Process: Selvi v State of Karnataka

Yale University - Law School
121
8.

The Public Safety Assessment: A Re-Validation and Assessment of Predictive Utility and Differential Prediction by Race and Gender in Kentucky

RTI International, RTI International, RTI International, RTI International, RTI International and RTI International
117
9.

The Assumptions Underlying England's Adoption of Trial by Jury for Crime

Harvard Law School and University of Michigan Law School
105
10.

Arrests As Guilt

Seattle University School of Law
103

June 16, 2018 | Permalink | Comments (0)

Friday, June 15, 2018

Cook on Expert Witnesses in Sex Trafficking Prosecutions

Cook blancheBlanche Cook (Wayne State University Law School) has posted Stop Traffic: Using Expert Witnesses to Disrupt Intersectional Vulnerability in Sex Trafficking Prosecutions (FORTHCOMING — Berkeley Journal of Criminal Law — (2019)) on SSRN. Here is the abstract:
 
Sex trafficking thrives on intersectional inequality and reinforcing layers of vulnerability. Sex trafficking exists on a continuum of sexualized violence, from microaggressive sexual harassment to macroaggressive gang rapes, all of which create vulnerability in the victim and perfect sovereignty in the perpetrator. Sexualized violence performs power, as it is raced, classed, and gendered. Power not only requires performance, but it necessitates repetitive reenactments of domination in order to normalize its compulsive and pathological nature. Lynchings, police shootings, gang rapes, and sex trafficking are all performances of power on vulnerable bodies through which power perfects itself. The same inequality that creates the necessary preconditions for vulnerability to violence in the first instance, also obfuscates or masks power’s pathology and compulsivity in the investigative and adjudicative processes. By way of illustration, victim blaming renders the pathology of the perpetrator invisible because it removes accountability from the perpetrator and shifts blame onto the victim. Shifting blame onto the victim obfuscates or hides power’s omnipresence, compulsiveness, and pathology. The victim blaming process is pervasive, systemic, and entrenched.

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June 15, 2018 | Permalink | Comments (0)

King et al. on AI Crime

Thomas KingNikita AggarwalMariarosaria Taddeo and Luciano Floridi (University of Oxford - Oxford Internet Institute, University of Oxford - Oxford Internet Institute, University of Oxford - Oxford Internet Institute and University of Oxford - Oxford Internet Institute) have posted Artificial Intelligence Crime: An Interdisciplinary Analysis of Foreseeable Threats and Solutions on SSRN. Here is the abstract:
 
Artificial Intelligence (AI) research and regulation seek to balance the benefits of innovation against any potential harms and disruption. However, one unintended consequence of the recent surge in AI research is the potential re-orientation of AI technologies to facilitate criminal acts, which we term AI-Crime (AIC). We already know that AIC is theoretically feasible thanks to published experiments in automating fraud targeted at social media users, as well as demonstrations of AI-driven manipulation of simulated markets. However, because AIC is still a relatively young and inherently interdisciplinary area—spanning socio-legal studies to formal science—there is little certainty of what an AIC future might look like. This article offers the first systematic, interdisciplinary literature analysis of the foreseeable threats of AIC, providing law enforcement and policy-makers with a synthesis of the current problems, and a possible solution space.

June 15, 2018 | Permalink | Comments (0)

Grucza et al. on Cannabis Decriminalization

Rick GruczaMelissa KraussAndrew PlunkArpana AgrawalFrank J. Chaloupka and Laura Bierut (Washington University in St. Louis - Department of Psychiatry, Washington University in St. Louis - Department of Psychiatry, Eastern Virginia Medical School - Department of Pediatrics, Washington University in St. Louis - Department of Psychiatry, University of Illinois at Chicago - Department of Economics and Washington University in St. Louis - Department of Psychiatry) have posted Cannabis Decriminalization: A Study of Recent Policy Change in Five States on SSRN. Here is the abstract:
 
Background: A number of public health professional organizations support the decriminalization of cannabis due to adverse effects of cannabis-related arrests and legal consequences, particularly on youth. We sought to examine the associations between cannabis decriminalization and both arrests and youth cannabis use in five states that passed decriminalization measures between the years 2008 and 2014: Massachusetts (decriminalized in 2008), Connecticut (2011), Rhode Island (2013), Vermont (2013), and Maryland (2014). 

Methods: Data on cannabis possession arrests were obtained from federal crime statistics; data on cannabis use were obtained from state Youth Risk Behavior Survey (YRBS) surveys, years 2007-2015. Using a “difference in difference” regression framework, we contrasted trends in decriminalization states with those from states that did not adopt major policy changes during the observation period.

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June 15, 2018 | Permalink | Comments (0)

Thursday, June 14, 2018

"The 96-Year-Old Brooklyn Judge Standing Up to the Supreme Court"

The story is in The New York Times. In part:

In a spirited decision issued Monday, the judge, Jack B. Weinstein, argued that the justices had gone too far in a pair of recent rulings expanding qualified immunity, a legal doctrine that protects law-enforcement officers from being sued for actions they perform on the job. Judge Weinstein complained that the broadened doctrine now protects “all but the plainly incompetent.”

“The Supreme Court’s recent emphasis on shielding public officials and federal and local law enforcement means many individuals who suffer a constitutional deprivation will have no redress,” he wrote.

June 14, 2018 | Permalink | Comments (0)

"Katherine Mangu-Ward and I Podcasting About Crime-Facilitating Speech"

Eugene Volokh has this post at The Volokh Conspiracy, linking to the podcast.

June 14, 2018 | Permalink | Comments (0)

Kaplan & Puracal on Junk Science

Aliza B. Kaplan and Janis Puracal (Lewis & Clark Law School and Oregon Innocence Project) has posted It's Not a Match: Why the Law Can't Let Go of Junk Science (Albany Law Review, Vol. 81, 2018) on SSRN. Here is the abstract:
 
In this article, we argue that there is a need to increase validity and reliability of forensic science in the criminal justice system through a collaborative approach. In part II, we explain the legal rules governing the admissibility of scientific evidence in criminal cases and the evolution of that law over time. Parts III and IV describe a 2016 report by the President’s Council of Advisors on Science and Technology (“PCAST”), which analyzed the methodology and validity of many “pattern identification” or “feature-comparison” methods. PCAST asked whether DNA analysis, bite marks, latent fingerprints, firearms identification, and footwear analysis are supported by reproducible research, and is, therefore, reliable evidence. PCAST concluded that many of these forensic methods lack validation studies and need to be addressed. The PCAST Report followed an earlier report by the National Academy of Sciences (“NAS”) in 2009, which enumerated the problems in the forensic science community and the need for significant improvement. In Part V, we address the opposition to the PCAST Report from the National Association of District Attorneys, United States Attorney General, and FBI, along with PCAST’s response to that opposition. Part VI focuses on the promise of the PCAST Report, in particular how implementing its recommendations could help reduce the numbers of wrongful convictions, massive case reviews, and crime lab scandals. We also discuss the broader impact of forensic reform to protect the integrity of our justice system. Unfortunately, as we discuss in Parts VII and VIII, there has been little change in the law to prevent the admissibility of faulty forensics and in fact, courts continue to regularly admit questionable and invalid forensic science into evidence. We explore the reasons for the lack of change, including our reliance on past precedent that makes the legal system a poor venue for forensic reform with a more concerted effort. In Part IX, we note that the likelihood of change coming from the federal government is low as the Obama Administration failed to implement any plan for change after the PCAST Report and the current Administration announced last April that it would not renew the National Commission on Forensic Science. In Parts X and XI, we discuss the need for further collaboration between scientists and lawyers/judges, and we propose a specialized role of forensic resource counsel to help facilitate that collaboration.

June 14, 2018 | Permalink | Comments (0)

Wednesday, June 13, 2018

"Notable new analysis of US incarceration levels and recent (modest) changes"

Doug Berman has this post at Sentencing Law & Policy. From  his excerpt:

Although the US prison population has declined over six years, after increasing for nearly four decades, a new analysis by researcher Malcolm C. Young, published by the Center for Community Alternatives, concludes that the nation is not reducing prison populations at a pace that would end mass incarceration in the foreseeable future.

A report issued in January by the Bureau of Justice Statistics of data through 2016 found that prison populations decreased in 33 states that year — more states than had experienced decreases in any recent year. The average decrease was three percent. In 42 states, prison populations were lower than they had been recently.  Just eight states increased their prison populations to record high numbers.

The downturn it documented, while perhaps marking the beginning of an end to three-and-a-half decades of increases, “is anemic to the point of listlessness,” says Young, a longtime advocate of cutting prison populations. If the numbers of inmates continue to decrease only at the rate they did between 2014 and2016, there will still be more than a million people incarcerated in prison in 2042. The nation wouldn’t reach the goal of groups like #Cut50.org to reduce prison populations to half of what they are today for another 50 years, until 2068.

 

June 13, 2018 | Permalink | Comments (0)

"Private attorneys in death penalty cases create dilemmas for judges, public defenders"

From The Indiana Lawyer, via the NACDL news scan:

After spending much of the pretrial conference questioning the defense attorney about her caseload, ability to retain co-counsel and the expenses related to hiring an investigator and mitigation specialist, Marion Superior Judge Sheila Carlisle concluded by describing the situation taking place in her courtroom.

“This is uncharted territory,” she said.

June 13, 2018 | Permalink | Comments (0)

Stinson on Tribal Disenrollment as Cruel and Unusual

Stinson judyJudith M. Stinson (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted When Tribal Disenrollment Becomes Cruel and Unusual (97 Neb. L. Rev. __ (2019 Forthcoming)) on SSRN. Here is the abstract:
 
In the past two decades, Native American tribes have disenrolled—permanently removed from tribal citizenship—thousands of tribal members, mainly because of lineage concerns or for political reasons. In these instances, scholars generally decry disenrollment. But there is a growing trend to disenroll tribal citizens for criminal conduct, and scholars (and even tribal members themselves) assume this is proper. This paper argues that tribal disenrollment for criminal conduct violates the Indian Civil Rights Act’s prohibition on cruel and unusual punishment.

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June 13, 2018 | Permalink | Comments (0)

Tuesday, June 12, 2018

"Why Do We Care So Much About Privacy?"

From The New Yorker:

The Muzak case is not in Igo’s book, but plenty else is. She takes on telegraphy, telephony, instantaneous photography (snapshots), dactyloscopy (fingerprinting), Social Security numbers, suburbanization, the Minnesota Multiphasic Personality Inventory, Fourth Amendment jurisprudence, abortion rights, gay liberation, human-subject research, the Family Educational Rights and Privacy Act, “60 Minutes,” Betty Ford, the 1973 PBS documentary “An American Family,” the Starr Report, the memoir craze, blogging, and social media. Igo is an intelligent interpreter of the facts, and her intelligence frequently leads her to the conclusion that “privacy” lacks any stable significance. Privacy is associated with liberty, but it is also associated with privilege (private roads and private sales), with confidentiality (private conversations), with nonconformity and dissent, with shame and embarrassment, with the deviant and the taboo (Igo does not go there), and with subterfuge and concealment.

June 12, 2018 | Permalink | Comments (0)

"The Case Against Qualified Immunity"

Two recent posts by  at The Volokh Conspiracy illuminate the topic. In part:

Yesterday, I explained that qualified immunity doctrine looks nothing like the common law in existence in 1871, when Section 1983 became law. But the Court appears to recognize this fact—it acknowledged decades ago that it had "completely reformulated qualified immunity along principles not at all embodied in the common law." Today, the Court defends qualified immunity doctrine not as a relic of the common law but instead as an instrument to achieve various policy goals—protection from personal financial liability, protection from the burdens of discovery and trial in insubstantial cases, and protection against the threat of overdeterrence of officers on the job. Yet, as I argue in a forthcoming article, excerpted here, all available evidence indicates that qualified immunity doctrine fails to serve these policy goals.

June 12, 2018 | Permalink | Comments (0)

Kent on Piracy

Kent andrewAndrew Kent (Fordham University School of Law) has posted Piracy, the Law of Nations, and the Limits of Due Process (Forthcoming 39 Michigan Journal of International Law (2018)) on SSRN. Here is the abstract:
 
This Article engages the long-running debate about the geographical and contextual scope of U.S. constitutional protections. There is agreement that both citizens and noncitizens enjoy largely equal rights when present within the United States, and that when they venture abroad, U.S. citizens carry most of their constitutional rights with them. But beyond that, there are many disputes. Do noncitizens have any constitutional protection from the U.S. government when it acts against them outside U.S. borders? Does it matter whether the location is the ungoverned high seas or the sovereign territory of another nation? Does the context matter? Is law enforcement different from military force? Does it matter whether the subject is an internationally-recognized sovereign versus a non-state actor?

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June 12, 2018 | Permalink | Comments (0)

Monday, June 11, 2018

Polavarapu on Carceral Feminism and Domestic Violence

Polavarapu_aparnaAparna Polavarapu (University of South Carolina - School of Law) has posted Global Carceral Feminism and Domestic Violence: What the West Can Learn from Reconciliation in Uganda (Harvard Journal of Law and Gender, Forthcoming) on SSRN. Here is the abstract:
 
Policies and laws emphasizing criminal justice have dominated domestic violence interventions, in the United States and globally, for decades. The feminist advocacy promoting the criminal justice approach is referred to by critics as “carceral feminism.” Western influence in the international human rights movement has spurred the spread of carceral feminism around the world, seeing it as the key means for addressing violence against women. However, the carceral approach is now criticized for failing to help, and sometimes outright harming, its supposed beneficiaries. In place of carceral policies, advocates have begun to push for community-based restorative and transformative justice alternatives to prosecution. This article examines Uganda’s use of reconciliation, a restorative justice mechanism, to respond to and prevent domestic violence in the community.

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June 11, 2018 | Permalink | Comments (0)

Michalski & Rushin on Police Executive on Legal Regulation

Roger Michalski and Stephen Rushin (University of Oklahoma College of Law and Loyola University Chicago School of Law) have posted Police Executive Opinions of Legal Regulation (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:
 
By conducting a national survey, this Article empirically assesses how American police leaders perceive external legal regulation. 

At various times, policymakers have decried external police regulations as too expensive, too complicated, or too difficult to apply to different factual scenarios. Critics have also alleged that police regulations change too frequently, inadequately consider input from the law enforcement community, and unduly risk the safety of officers or the broader community. 

These complaints underscore an uncomfortable, but unavoidable reality: efforts to regulate police behavior often require policymakers to make compromises. A rule that promotes one goal may necessarily compromise another important goal. So what do police leaders actually care about most when faced with external legal regulation?

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June 11, 2018 | Permalink | Comments (0)

Chin & Crozier on Experts and the Jury's Ken

Jason Chin and William Crozier (The University of Queensland - T.C. Beirne School of Law and CUNY, John Jay College of Criminal Justice) have posted Rethinking the Ken Through the Lens of Psychological Science (Osgoode Hall Law Journal, Forthcoming) on SSRN. Here is the abstract:
 
Canadian courts are loathe to admit expert evidence from psychological scientists when that evidence does not concern a disposition, typically a psychological disorder. As a result, psychological evidence concerning the unconscious processes and situational forces that underlie mistaken eyewitness identifications and wrongful confessions are regularly excluded from courtrooms. Courts justify these exclusions on the basis that the evidence is not beyond the ken of the trier of fact – the psychologist would simply be describing an experience shared by judge and jury. This reasoning stands on a fundamental misunderstanding of psychology. In fact, psychological science finds that the situation drives behaviour in a manner that regularly evades the trier of fact’s ken. This is because these situational forces rely on unconscious cognitive processes, and humans rarely have introspective access to these processes. As a result, humans cling to several deep misconceptions about memory processes and confessions.

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June 11, 2018 | Permalink | Comments (0)

Sunday, June 10, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

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

Date Posted: 13 Apr 2018 [2nd last week]

446
2.
University of Colorado Law School

Date Posted: 16 Apr 2018 [3rd last week]

314
3.
International Islamic University, Islamabad

Date Posted: 10 May 2018 [4th last week]

198
4.
University of Denver Sturm College of Law, University of Denver Sturm College of Law, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver - Sturm College of Law, Students, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project and University of Denver Sturm College of Law - Homeless Advocacy Policy Project

Date Posted: 07 May 2018 [6th last week]

145
5.
Boston University School of Law

Date Posted: 10 May 2018 [8th last week]

129
6.
Stanford Center for Law and History

Date Posted: 27 Apr 2018 [7th last week]

128
7.
University of North Carolina School of Law

Date Posted: 21 Apr 2018 [9th last week]

122
8.
Georgetown University

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

111
9.
University of York

Date Posted: 24 Apr 2018 [10th last week]

106
10.
University of California, Irvine School of Law

Date Posted: 17 Apr 2018 [new to top ten]

103

June 10, 2018 | Permalink | Comments (0)

Saturday, June 9, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Opinion on the Constitutionality of Robert Mueller's Appointment

Northwestern University - Pritzker School of Law
3,628
2.

The Writ-of-Erasure Fallacy

Stanford Law School
172
3.

What to Expect When You Are Arrested: A Guide to Navigating for Unhoused Defendants

Seattle University, School of Law, Students, Seattle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law
162
4.

Relative Plausibility and its Critics

Northwestern University Law School and University of Alabama School of Law
132
5.

Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts

Stanford Center for Law and History
128
6.

Privacy and the Criminal Process: Selvi v State of Karnataka

Yale University - Law School
121
7.

Challenging the Punitiveness of 'New-Generation' SORN Laws

Florida State University - College of Law
119
8.

The Public Safety Assessment: A Re-Validation and Assessment of Predictive Utility and Differential Prediction by Race and Gender in Kentucky

RTI International, RTI International, RTI International, RTI International, RTI International and RTI International
111
9.

The Assumptions Underlying England's Adoption of Trial by Jury for Crime

Harvard Law School and University of Michigan Law School
98
10.

Arrests As Guilt

Seattle University School of Law
97

June 9, 2018 | Permalink | Comments (0)