CrimProf Blog

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

Tuesday, April 17, 2018

Opinion holding residual clause in immigration statute void for vagueness

Justice Kagan delivered the opinion of the Court in Sessions v. Dimaya with respect to certain parts and was joined by Justices Ginsburg, Breyer, and Sotomayor as to others. Justice Gorsuch concurred in part and concurred in the judgment. Chief Justice Roberts filed a dissenting opinion, joined by Justices Kennedy, Thomas, and Alito. Justice  Thomas also filed a dissenting opinion, joined in part by Justices Kennedy and Alito.

April 17, 2018 | Permalink | Comments (0)

Monday, April 16, 2018

Simmons on Legitimacy and Predictive Algorithms

Simmons ricRic Simmons (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Big Data, Machine Judges, and the Legitimacy of the Criminal Justice System (University of California Davis Law Review, Vol. 52, 2018) on SSRN. Here is the abstract:
Predictive algorithms are rapidly spreading throughout the criminal justice system. They are used to more efficiently allocate police resources, identify potentially dangerous individuals, and advise judges at bail hearings and sentencing determinations. These algorithms have the potential to increase the accuracy, efficiency, and fairness of the criminal justice system, and they have been criticized on the grounds that they may reinforce pre-existing biases against minorities. But one aspect of these tools that has not yet been discussed in the literature is whether they will be accepted as legitimate. For centuries, these critical decisions that affect people’s safety and liberty have been made by human beings; now, for the first time in human history, we are delegating large aspects of these decisions to machines. This article addresses whether people will be willing to accept this change, and if not, how we can adapt the algorithms in order to make them more acceptable.

Continue reading

April 16, 2018 | Permalink | Comments (0)

Capers on Evidence Without Rules

Capers i bennettI. Bennett Capers (Brooklyn Law School) has posted Evidence Without Rules (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract:
In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the courtroom, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. “Evidence Without Rules” calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters in ways that have real consequences. Jurors use this other evidence to decide whether to find for a plaintiff or defendant, whether a defendant should go free or be deprived of liberty, and whether the defendant is deserving of life or death. Even in cases that do not go to trial, this unregulated evidence has outsized consequences, since these cases are negotiated and settled in the “shadow of trial” with prospective jurors in mind. More broadly, the role of other evidence belies what we tell ourselves about the way justice works, that it is based on the “rule of law.” The truth is less comforting. The determination of outcomes, notwithstanding the Rules of Evidence, is often rule-less. To address this state of affairs, this article first offers a modest proposal, a simple jury instruction and directive. It then offers a solution that is anything but modest—a radical rethinking of the Rules of Evidence.

April 16, 2018 | Permalink | Comments (0)

Kreag on Disclosing Prosecutorial Misconduct

Kreag jasonJason Kreag (University of Arizona Rogers College of Law) has posted Disclosing Prosecutorial Misconduct (72 Vanderbilt Law Review ___ 2019) on SSRN. Here is the abstract:
Prosecutorial misconduct in the form of Brady violations continues to plague the criminal justice system. Brady misconduct represents a fundamental breakdown in the adversarial process, denying defendants a fair trial and undermining the legitimacy of the system. Commentators have responded by proposing a range of reforms to increase Brady compliance going forward. Yet these reforms have largely ignored the need to remedy the harms from past Brady violations. Furthermore, these proposals focus almost entirely on the harms defendants face from prosecutors’ Brady misconduct, ignoring the harms victims, jurors, witnesses, and others endure. This Article proposes a new remedy to supplement the current responses to Brady misconduct: the Brady Violation Disclosure Letter. It proposes sending a concise letter documenting the misconduct to the relevant stakeholders who participated in the initial trial that was corrupted by a Brady violation. This disclosure is a partial remedy for the range of harms Brady violations create. It also promises to increase Brady compliance and to promote transparency in a criminal justice system that is increasingly opaque. Importantly, this proposal can be implemented immediately without adopting new rules or statutes and without expanding Brady’s exiting constitutional protections.

April 16, 2018 | Permalink | Comments (0)

Sunday, April 15, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
University of Washington - School of Law, University of Washington - Paul G. Allen School of Computer Science & Engineering, University of Washington - Paul G. Allen School of Computer Science & Engineering, University of Washington - Paul G. Allen School of Computer Science & Engineering and University of Washington School of Law

Date Posted: 28 Mar 2018 

Santa Clara University - School of Law

Date Posted: 08 Mar 2018 [3rd last week]

University of North Carolina School of Law

Date Posted: 16 Mar 2018 [4th last week]

Massachusetts Institute of Technology (MIT), Rutgers University, New Brunswick and Georgetown University Law Center

Date Posted: 03 Mar 2018 [6th last week]

University of Virginia - School of Law and University of Virginia - School of Law, Alumnus or Degree Candidate Author

Date Posted: 22 Feb 2018 

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

Date Posted: 05 Mar 2018 [7th last week]

American University - Washington College of Law

Date Posted: 14 Mar 2018 [9th last week]

Yale University - Law School

Date Posted: 03 Apr 2018 [new to top ten]

University of Virginia - School of Law

Date Posted: 29 Mar 2018 [new to top ten]

Willamette University College of Law

Date Posted: 19 Mar 2018 [8th last week]


April 15, 2018 | Permalink | Comments (0)

Saturday, April 14, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads

What Caused the 2016 Chicago Homicide Spike? An Empirical Examination of the 'ACLU Effect' and the Role of Stop and Frisks in Preventing Gun Violence

University of Utah - S.J. Quinney College of Law and University of Utah - College of Social & Behavioral Sciences - Department of Economics

Cross-Enforcement of the Fourth Amendment

University of Southern California Gould School of Law

Harmless Errors and Substantial Rights

Washington University in St. Louis - School of Law

The Scale of Misdemeanor Justice

George Mason University - Antonin Scalia Law School, Faculty and University of Georgia School of Law

How Trial Judges Should Think About Forensic Science Evidence

Northwestern University - Pritzker School of Law

The Myth of the Reliability Test

University of Virginia - School of Law and Innocence Project, Inc.

Artificial Intelligence and Automated Law Enforcement: A Review Paper

University of Liege - School of Law

Principles of Risk Assessment: Sentencing and Policing

Vanderbilt University - Law School

Racial Equity in Algorithmic Criminal Justice

University of Chicago - Law School

'Don't Elect Me': Sheriffs and the Need for Reform in County Law Enforcement

University of Virginia - School of Law, Alumnus or Degree Candidate Author

April 14, 2018 | Permalink | Comments (0)

Next week's criminal law/procedure argument

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


  • Lagos v. U.S.: Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim's own purposes and unprompted by any official government action.

April 14, 2018 | Permalink | Comments (0)

Friday, April 13, 2018

Fields on Stop and Frisk in a Concealed Carry World

Shawn Fields (University of San Diego School of Law) has posted Stop and Frisk in a Concealed Carry World (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer’s observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts can no longer reasonably assume that “public gun possession” equals “criminal activity.”

Continue reading

April 13, 2018 | Permalink | Comments (0)

Rudovsky & Harris on Terry Stops-and-Frisks

David Rudovsky and David A. Harris (University of Pennsylvania Law School and University of Pittsburgh - School of Law) have posted Terry Stops-and-Frisks: The Troubling Use of Common Sense in a World of Empirical Data (Ohio State Law Journal, Forthcoming) on SSRN. Here is the abstract:
The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of suspect conduct and other predicates for law enforcement interventions. And what has been learned calls into question a number of factors that have been credited over many years.

Continue reading

April 13, 2018 | Permalink | Comments (0)

King on Privatizing Criminal Procedure

King jdJ.D. King (Washington and Lee University) has posted Privatizing Criminal Procedure (Georgetown Law Journal, Vol. 107, 2019, Forthcoming) on SSRN. Here is the abstract:
As the staggering costs of the criminal justice system continue to rise, many states have begun to look for non traditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades how we conceive of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.

April 13, 2018 | Permalink | Comments (0)

Root on The Compliance Process

Root.veronicaVeronica Root (Notre Dame Law School) has posted The Compliance Process (94 Indiana L. J. __ (2019) (Forthcoming)) on SSRN. Here is the abstract:
Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of compliance throughout the organizational structure. In short, creating an effective compliance program is an inherently difficult task.

Continue reading

April 13, 2018 | Permalink | Comments (0)

Thursday, April 12, 2018

Kaufman on Bystanders and Sexual Violence

Zachary D. Kaufman has posted Protectors of Predators or Prey: Bystanders and Upstanders Amid Sexual Violence (Southern California Law Review, 2019 Forthcoming) on SSRN. Here is the abstract:
In the wake of widespread revelations about sexual misconduct by President Donald Trump, Harvey Weinstein, Larry Nassar, and many others, the country is reckoning with the past and searching for the means to prevent and punish such crimes in the future. In many of these cases, third parties knew about the abuse and did not try to intervene. Scrutiny of such bystanderism is increasing, including in the legal world. But the scourge of sexual violence—and the failure of those aware of it to intervene—goes far beyond instances perpetrated by powerful men; sexual crimes are rampant throughout the United States.

This Article proposes a more comprehensive, aggressive approach to addressing third parties who are aware of specific instances of sexual violence in order to align law and society more closely with morality. The Article begins by providing an overview and assessment of Bad Samaritan laws: statutes that impose a duty to assist others in peril and include direct intervention, reporting the emergency to law enforcement, or both. Such laws exist in some U.S. states and many foreign countries.

Continue reading

April 12, 2018 | Permalink | Comments (0)

Turner jeniaJenia Iontcheva Turner (Southern Methodist University - Dedman School of Law) has posted Pluralism in International Criminal Procedure (Oxford Handbook of Criminal Process (Darryl K. Brown, Jenia I. Turner, and Bettina Weisser, eds.) (2018 Forthcoming)) on SSRN. Here is the abstract:
Over the last two decades, international criminal procedure has become a recognized body of law, with textbooks, treatises, and law review articles discussing its rules and principles and theorizing its goals and methods. The term refers to the procedures used at the international criminal courts and tribunals created to address some of the most serious offenses, such as genocide, crimes against humanity, and war crimes. Some of these courts are fully international, like the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the permanent International Criminal Court (ICC). Others are “hybrid courts,” featuring a mix of domestic and international personnel, laws, and practices and including the Special Court for Sierra Leone (SCSL), the East Timor Special Panels for Serious Crimes, the Bosnia and Herzegovina War Crimes Chamber, the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Special Tribunal for Lebanon (STL). More hybrid courts are being created and proposed today, even as the appetite for international institutions appears on the decline. 

Even as international criminal courts have proliferated and international criminal procedure has attained recognition as an independent corpus of law, foundational questions about the field remain.

Continue reading

April 12, 2018 | Permalink | Comments (0)

McIntyre & O'Donnell on Data Protection and Criminal Convictions

T. J. McIntyre and Ian O'Donnell (UCD Sutherland School of Law and Sutherland School of Law, University College Dublin) have posted Criminals, Data Protection and the Right to a Second Chance ((2017) 58 Irish Jurist (ns) 27) on SSRN. Here is the abstract:
In 2016 Ireland belatedly introduced legislation to allow for the expungement of adult criminal records and, in doing so, highlighted a changing technological and legal context which challenges the assumptions underlying rehabilitation laws. The potential impact of convictions on individuals’ life chances has increased as mandatory vetting has become more widespread. Even where vetting is not required, internet search engines render criminal histories easily accessible to curious third parties. In the other direction, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) have developed privacy and data protection principles which require states to limit the availability of information about old convictions. In this article we outline the limitations of the Irish legislation and use it as a case study to consider these wider issues, examining how it illustrates the growing importance of European privacy and data protection norms in national criminal justice and rehabilitation systems.

April 12, 2018 | Permalink | Comments (0)

Wednesday, April 11, 2018

Joh on Automated Policing

Joh elizabethElizabeth E. Joh (University of California, Davis - School of Law) has posted Automated Policing (Ohio State Journal of Criminal Law, Vol. 15, 2018) on SSRN. Here is the abstract:
Here is a thought experiment about a distant future — but not that distant. What if much of policing becomes automated? The job of a security guard will become increasingly automated. The military envisions a future of human operators overseeing groups of semi-autonomous robots doing the work human soldiers once did. Policing is not so distinct from private security or from the military that it will be immune from these developments. By automated policing, I mean a future in which a significant portion of ordinary policing employs robotics, artificial intelligence, and big data. These changes are already transforming the economy and society because of three trends: the availability of vast amounts of digitized data, the increasing sophistication of algorithms, and advances in robotics. Human officers would not disappear, but their role would be changed, just as it would in truck driving and other occupations.

April 11, 2018 | Permalink | Comments (0)

McNeal et al. on Drones

Gregory S. McNealWilliam Goodwin and Sezen Jones (Pepperdine University School of Law, AirMap and AirMap) have posted Warrantless Operations of Public Use Drones: Considerations for Government Agencies (Fordham Urban Law Journal, Vol. 44, p. 703, 2017) on SSRN. Here is the abstract:
The benefits of drones continue to transform our lives and nowhere is this more apparent than with the use of drones by local governments. While these benefits are tremendous, residents often express privacy concerns and fear of persistent surveillance associated with law enforcement’s deployment of drones. In response, critics have made knee jerk reactions to attempt to apply warrant requirements prior to police use of drones. 

Outside of the law enforcement context, civic uses of drones face similar challenges to deployment, so long as government actors must operate under a traditional administrative warrant analysis. This Article advocates that well established aerial surveillance law is applicable to both law enforcement use of drones as well as other public uses of drones.

Continue reading

April 11, 2018 | Permalink | Comments (0)

Logan on False Massiah

Logan wayneWayne A. Logan (Florida State University - College of Law) has posted False Massiah: The Sixth Amendment Revolution That Wasn’t (50 Texas Tech. L. Rev. 153 (2017)) on SSRN. Here is the abstract:
Today, when one thinks of the Supreme Court’s seminal decisions concerning the constitutional regulation of confessions, Miranda v. Arizona naturally comes to mind. This symposium contribution considers yet another Warren Court decision regarding confessions, one issued two years before Miranda: Massiah v. United States. In Massiah, the Court deviated from its decades-long reliance on due process to limit police authority to extract confessions, focusing instead on the right to counsel contained in the Sixth Amendment. Massiah inspired a spirited three-member dissent, written by Justice Byron White, voicing a tone of alarm akin to that to come in the Miranda dissents, and the decision has since been lauded as a key limit on police authority. 

This Article assesses whether Massiah warrants such praise and concern.

Continue reading

April 11, 2018 | Permalink | Comments (0)

Kirchmaier et al. on Crime Booms and Busts

Tom KirchmaierStephen J. MachinMatteo Sandi and Robert Witt (London School of Economics - Centre for Economic Performance, University College London - Department of Economics, London School of Economics & Political Science (LSE) - Centre for Economic Performance (CEP) and University of Surrey) have posted Prices, Policing and Policy: The Dynamics of Crime Booms and Busts on SSRN. Here is the abstract:
In many historical episodes, the extent of criminal activity has displayed booms and busts. One very clear example is the case of metal crime, where in the face of big increases in value driven by world commodity prices, the incidence of metal thefts in the UK (and elsewhere) rose very sharply in the 2000s. Early in the current decade, they fell sharply again. This paper studies the roles of prices, policing and policy in explaining these crime dynamics. The empirical analysis shows sizeable and significant metal crime-price elasticities, in line with the idea that changing economic returns do shape crime. However, the rapid upward and downward trends are not only due to price changes. Their temporal evolution is also explained by changes in policing and policy. On the former, a difference-in-differences approach is used to document an important role of policing as a consequence of an anti-metal crime operation introduced in 2012. On the latter, the introduction of the Scrap Metal Dealers Act 2013 is exploited to study the impact of policy on the economic activity of scrap metal dealers in England and Wales. Results from our difference-in-differences specification suggest that the tougher regulatory system introduced by the policy hindered the economic activity of pre-existing dealers, reflecting the reduced market size for potential metal criminals to sell what they have stolen.

April 11, 2018 | Permalink | Comments (0)

Tuesday, April 10, 2018

Berry on Magnifying Miranda

William W. Berry (Berry williamUniversity of Mississippi School of Law) has posted Magnifying Miranda (50 Texas Tech L. Rev. 97 (2017) (symposium)) on SSRN. Here is the abstract:
This article is part of a symposium held at Texas Tech Law School exploring the consequences of Miranda v. Arizona after 50 years. The panel that this paper emerged from was asked to address whether Miranda was good for police.

The article argues not only that Miranda has been a positive development for policing, but also that it provides a roadmap for other prophylactic constitutional interpretations that might enhance the protection of under-enforced constitutional rights and improve the societal outcomes in policing and sentencing. Specifically, the article briefly considers applications to protections arising under the Fourth, Sixth, and Eighth Amendments.

April 10, 2018 | Permalink | Comments (0)

Deeks on Predicting Enemies

Deeks ashleyAshley Deeks (University of Virginia - School of Law) has posted Predicting Enemies (104 VA. L. REV. __ (2018, Forthcoming)) on SSRN. Here is the abstract:
Actors in our criminal justice system increasingly rely on computer algorithms to help them predict how dangerous certain people and certain physical locations are. These predictive algorithms have spawned controversies because their operations are often opaque and some algorithms use biased data. Yet these same types of predictive algorithms inevitably will migrate into the national security sphere, as the military tries to predict who and where its enemies are. Because military operations face fewer legal strictures and more limited oversight than criminal justice processes do, the military might expect – and hope – that its use of predictive algorithms will remain both unfettered and unseen.

This article shows why that is a flawed approach, descriptively and normatively.

Continue reading

April 10, 2018 | Permalink | Comments (0)