CrimProf Blog

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

Wednesday, April 4, 2018

Petit on Artificial Intelligence and Automated Law Enforcement

Nicolas Petit (University of Liege - School of Law) has posted Artificial Intelligence and Automated Law Enforcement: A Review Paper on SSRN. Here is the abstract:
 
This paper discusses the legal issues generated by the introduction of Artificial Intelligence (“AI”) and cognitive robotics technologies in the area of law enforcement. This can be referred to as “automated law enforcement”. The paper starts by providing a quick reminder on “law enforcement” (1). It moves on to provide an overview of “automated law enforcement” systems (2). It then discusses philosophical issues (3) and conventional legal issues (4).

April 4, 2018 | Permalink | Comments (0)

Cleveland et al. on Encouragement, Putative Confession, and Children's Memory

Kyndra ClevelandJodi Quas and Thomas D. Lyon (Vanderbilt University - Peabody College, University of California, Irvine - Department of Criminology, Law and Society and University of Southern California - Gould School of Law) have posted The Effects of Implicit Encouragement and the Putative Confession on Children's Memory Reports (Child Abuse and Neglect, Forthcoming) on SSRN. Here is the abstract:
 
The current study tested the effects of two interview techniques on children's report productivity and accuracy following exposure to suggestion: implicit encouragement (backchanneling, use of children's names) and the putative confession (telling children that a suspect "told me everything that happened and wants you to tell the truth"). One hundred and forty-three, 3-8-year-old children participated in a classroom event. One week later, they took part in a highly suggestive conversation about the event and then a mock forensic interview in which the two techniques were experimentally manipulated. Greater use of implicit encouragement led to increases, with age, in children's narrative productivity. Neither technique improved or reduced children's accuracy. No increases in errors about previously suggested information were evident when children received either technique. Implications for the use of these techniques in child forensic interviews are discussed.

April 4, 2018 | Permalink | Comments (0)

Tuesday, April 3, 2018

Koops on Location Tracking by Police

Bert-Jaap KoopsBryce Clayton Newell and Ivan Škorvánek (Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT), University of Kentucky and Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)) have posted Location Tracking by Police: New Frameworks for Preserving Geolocational Privacy (UC Irvine Law Review, Vol. 9, Spring 2019, Forthcoming) on SSRN. Here is the abstract:
 
Location information reveals people’s whereabouts, but can also tell much about their habits, preferences, and, ultimately, much of their private lives. Current surveillance technologies used in criminal investigation include many techniques to track someone’s movements; not all are equally intrusive. This raises the following questions: how do jurisdictions draw boundaries between lesser and more serious privacy intrusions? what factors play a role? how are geolocational privacy interests framed? In this Article, we answer these questions through a comparative analysis of location-tracking regulation in eight jurisdictions: Canada, Czechia, Germany, Italy, the Netherlands, Poland, the United Kingdom, and the United States.

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April 3, 2018 | Permalink | Comments (0)

Zalman on Cassell on Wrongful Convictions and Acquittals

Marvin Zalman (Wayne State University) has posted A Brief Reply to Professor Cassell (Seton Hall Law Review, Forthcoming) on SSRN. Here is the abstract:
 
My reply to Paul G. Cassell, Tradeoffs Between Wrongful Convictions and Wrongful Acquittals: Analyzing the Risks and Avoiding the Risks, which is in part a response to my article. The Anti-Blackstonians asserts (1) that all legal scholarship reflects the ideological predilections of authors and thus that our exchange should be evaluated in light of Prof. Cassell’s conservative and my liberal world views; (2) that many of Prof. Cassell’s assertions about correcting wrongful convictions are exaggerated, without scientific foundation, or wrong; (3) that Cassell’s support for Dr. Laudan’s ideas are misguided and if implemented would exacerbate the miseries of mass incarceration, and (4) a narrow focus on wrongful convictions should not hide the point that such injustices emanate from a deeply flawed criminal justice system.

April 3, 2018 | Permalink | Comments (0)

Rosenthal on Originalism

Rosenthal_LawrenceLawrence Rosenthal (Chapman University, The Dale E. Fowler School of Law) has posted An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:
 
There is likely no methodological question of greater importance to constitutional law than whether adjudication should be based on the original meaning of the Constitution’s text, or instead reflect an evolving understanding in light of felt experience. Little effort, however, has been made to test empirically the claim of originalists that their methodology offers an effective vehicle for constitutional adjudication. 

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April 3, 2018 | Permalink | Comments (0)

Monday, April 2, 2018

Baer on Internal Corporate Investigations

Baer_miriamMiriam H. Baer (Brooklyn Law School) has posted When the Corporation Investigates Itself (Research Handbook of Corporate Crime and Financial Misdealing, 2018 Forthcoming) on SSRN. Here is the abstract:
 
The internal corporate investigation has become an integral component of the corporate compliance function. Corporations invest considerable resources in identifying and explaining wrongdoing, and government prosecutors and regulators rely heavily on these information-generating activities.

This Chapter argues that the corporate investigation’s greatest challenges stem from the familiar problem of detection avoidance. As employees take steps to conceal their misbehavior, corporate actors must navigate a difficult relationship between government enforcers on the one hand, and corporate employees on the other.

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April 2, 2018 | Permalink | Comments (0)

SpearIt on Guns and Self-Defense to Curb Police Misconduct

SpearitSpearIt (Texas Southern University - Thurgood Marshall School of Law) has posted Firepower to the People! Gun Rights and the Law of Self-Defense to Curb Police Misconduct (Tennessee Law Review, Vol. 85, 2017) on SSRN. Here is the abstract:
 
This Article represents a polemic against the most harmful aspects of the policing status quo. At its core, the work asserts the right of civilians to defend against unlawful deadly police conduct. It argues that existing gun and self-defense laws provide a practical and principled basis for curbing police misconduct. It also examines legislative trends in gun laws to show that much of most recent liberalizing of gun rights is a direct response to self-defense concerns sparked by mass public shootings. The expansion of gun rights and self-defense comes at a time when ongoing police killings of Black civilians menace public opinion of the police and killings that result from ambush-style execution of a warrant. This Article posits that expanded gun rights and self-defense law can lead to greater police accountability such that civilians are empowered in the streets, in their homes, and in courts, with knowledge of their rights against police. The central thrust of the work is that expanded lawful gun possession by educated carriers increases the potential for legal gun possessors and carriers to intervene — not only to prevent mass killings, but also to counter unlawful bodily harm by police. Hence, this Article contemplates how existing law can be used to achieve more just outcomes, underscores that gun rights are at the core a self-defense issue, and maintains that sometimes police are the trigger for the use of self-defense.

April 2, 2018 | Permalink | Comments (0)

Lain on Michael Meltsner

Corinna Lain (University of Richmond - School of Law) has posted The Highs and Lows of Michael Meltsner: A Tribute (Northeastern Law Review, Extra Legal (2018)) on SSRN. Here is the abstract:
 
In this short essay, I share the professional highs and lows of famed civil rights lawyer Michael Meltsner, and then pause briefly to reflect on what Michael’s top three in both categories say about him. One would have thought that Furman v. Georgia, the 1972 decision that invalidated the death penalty as it was then administered, would make the list of Michael’s greatest accomplishments, and that Gregg v. Georgia, the 1976 decision that brought the death penalty back, would be among his greatest disappointments. But neither made the list. Ironically, the case for which Michael Meltsner is most famous wasn’t one of his greats at all. That is not to say that these cases didn’t matter. They did. But what Michael Meltsner’s highs and lows reveal are a larger set of core values. An unwavering commitment to justice and equality. A rejection of legal constructs that allow the law to dodge those moral imperatives. A determination to make a difference. A desire to use power for good. And an abiding faith that good can triumph even when the odds are enormously stacked against you. The highs and lows of Michael Meltsner are worthy of remembrance in their own right, but also worthy of note for giving depth and detail to the character of a man we already knew had it in spades. 

April 2, 2018 | Permalink | Comments (0)

Appleman on Eugenics and Mass Incarceration

Appleman lauraLaura I. Appleman (Willamette University College of Law) has posted Deviancy, Disability, and Dependency: The Forgotten History of Eugenics and Mass Incarceration (Duke Law Journal, Forthcoming) on SSRN. Here is the abstract:
 
Racism, harsh drug laws, and prosecutorial overreach have formed three widely-discussed explanations of the punitive carceral state. These three narratives, however, only partially explain where we are. Neglected in our discussion of mass incarceration is our largely-forgotten history of the long-term, wholesale institutionalization of the disabled. This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, provides an important part of our history of imprisonment, shaping key contours of our current supersized correctional system. Only by fully exploring this forgotten narrative of long-term detention and isolation will policy makers be able to understand, diagnose, and solve the crisis of mass incarceration.

April 2, 2018 | Permalink | Comments (0)

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers:

  • Stokeling v. U.S.: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

April 2, 2018 | Permalink | Comments (0)

Opinion reversing Ninth Circuit excessive force case on qualified immunity grounds

The per curiam opinion is in Kisela v. Hughes. Justice Sotomayor, joined by Justice Ginsburg, dissented.

April 2, 2018 | Permalink | Comments (0)

Sunday, April 1, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
Columbia University - Law School, Temple University and Temple University - Department of Psychology

Date Posted: 06 Feb 2018 

297
2.
Santa Clara University - School of Law

Date Posted: 08 Mar 2018 

208
3.
University of North Carolina School of Law

Date Posted: 16 Mar 2018 [new to top ten]

176
4.
University of Virginia - School of Law and University of Virginia - School of Law, Alumnus or Degree Candidate Author

Date Posted: 22 Feb 2018 [3rd last week]

98
5.
Massachusetts Institute of Technology (MIT), Rutgers University, New Brunswick and Georgetown University Law Center

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

89
6.
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 [5th last week]

74
7.
Federal Defender's Office, MDFL and Federal Defender's Office, MDFL

Date Posted: 16 Feb 2018 [6th last week]

66
8.
American University - Washington College of Law

Date Posted: 14 Mar 2018 [new to top ten]

61
9.
Willamette University College of Law

Date Posted: 19 Mar 2018 [new to top ten]

58
10.
University of Mississippi, School of Law

Date Posted: 20 Feb 2018 [7th last week]

55

April 1, 2018 | Permalink | Comments (0)

Saturday, March 31, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

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
734
2.

Cross-Enforcement of the Fourth Amendment

University of Southern California Gould School of Law
341
3.

Harmless Errors and Substantial Rights

Washington University in St. Louis - School of Law
218
4.

State Criminal Appeals Revealed

Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students
199
5.

How Trial Judges Should Think About Forensic Science Evidence

Northwestern University - Pritzker School of Law
195
6.

Principles of Risk Assessment: Sentencing and Policing

Vanderbilt University - Law School
133
7.

Possible Problems at the San Clemente Checkpoint

Western State College of Law
115
8.

'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
108
9.

Accountability in Policing: How Complicity Perpetuates Institutional Injustice and Inequities in the United States and South Africa

Independent
105
10.

The Myth of the Reliability Test

University of Virginia - School of Law and Innocence Project, Inc.
105

March 31, 2018 | Permalink | Comments (0)

Friday, March 30, 2018

Nance on Implicit Racial Bias and Students' Fourth Amendment Rights

Nance jasonJason P. Nance (University of Florida Levin College of Law) has posted Implicit Racial Bias and Students' Fourth Amendment Rights (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:
 
Tragic acts of school violence such as what occurred in Columbine, Newtown, and, most recently, Parkland, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors, surveillance cameras, drug-sniffing dogs, locked and monitored gates, random searches of students’ belongings, lockers, and persons, and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance on extreme security measures can create prison-like environments that are inconsistent with students’ best interests. Specifically, overreliance on intense surveillance measures often engenders distrust and discord among members of the school community in the long term, leading to increased disorder and dysfunction. Extreme security measures also play a role in pushing more students out of school and into the criminal justice system, which can have devastating consequences on students and their families. 

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March 30, 2018 | Permalink | Comments (0)

Eagly & Schwartz on The Privatization of Police Policymaking

Ingrid V. Eagly and Joanna C. Schwartz (University of California, Los Angeles (UCLA) - School of Law and University of California, Los Angeles (UCLA) - School of Law) have posted Lexipol: The Privatization of Police Policymaking (96 Texas Law Review 891 (2018)) on SSRN. Here is the abstract:
 
This Article is the first to identify and analyze the growing practice of privatized police policymaking. In it, we present our findings from public records requests that reveal the central role played by a limited liability corporation — Lexipol LLC — in the creation of internal regulations for law enforcement agencies across the United States. Lexipol was founded in 2003 to provide standardized policies and training for law enforcement. Today, more than 3,000 public safety agencies in thirty-five states contract with Lexipol to author the policies that guide their officers on crucial topics such as when to use deadly force, how to avoid engaging in racial profiling, and whether to enforce federal immigration laws. In California, where Lexipol was founded, as many as 95% of law enforcement agencies now rely on Lexipol’s policy manual.

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March 30, 2018 | Permalink | Comments (0)

Thursday, March 29, 2018

Baer on Insider Trading's Legality Problem

Baer_miriamMiriam H. Baer (Brooklyn Law School) has posted Insider Trading's Legality Problem (Yale Law Journal Forum, Vol. 127, p. 129, June 2017) on SSRN. Here is the abstract:
 
In late 2016, in its highly-watched decision in Salman v. United States, the Supreme Court attempted once again to clarify the crime of insider trading, this time regarding the secondary and tertiary recipients of information commonly referred to as “remote tippees.” In doing so, the Court seemed to put to rest any question that a person who “gifts” a friend or family member with material non-public information for the purposes of trading on such information does in fact trigger a violation of law. As cases go, Salman is relatively straightforward. Nevertheless, it demonstrates several of the drawbacks that arise when criminal laws become the product primarily of cases and not statutes. Ordinarily, proponents of legislative law-making cast their arguments in fairness terms, as written statutes provide advance warning of what is and is not forbidden. This Essay contends that legislatively enacted statutes go further than that. Under the best circumstances, they can improve the content of criminal law precisely because they permit the legislature to differentiate similar yet morally distinct conduct. With this benefit in mind, the Essay imagines what insider trading law might look like were Congress to both define and subdivide the crime of insider trading into the kind of tiered or degreed crimes more routinely featured in state codes.

March 29, 2018 | Permalink | Comments (0)

Ferguson on Illuminating Black Data Policing

Ferguson andrewAndrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted Illuminating Black Data Policing (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
 
The future of policing will be driven by data. Crime, criminals, and patterns of criminal activity will be reduced to data to be studied, crunched, and predicted. The benefits of big data policing involve smarter policing, faster investigation, predictive deterrence, and the ability to visualize crime problems in new ways. Not surprisingly then, police administrators have been seeking out new partnerships with sophisticated private data companies and experimenting with new surveillance technologies.

This potential future, however, has a very present limitation. It is a limitation largely ignored by adopting jurisdictions and could, if left unaddressed, delegitimize the adoption and use of new data-driven technologies. Simply put: all big data policing technologies have a “black data” problem. “Black data” connotes three overlapping concerns. First, big data policing is opaque, lacking transparency because most of the magic happens as a result of “black box” proprietary and mathematically complex algorithms. Second, big data policing is racially encoded, colored by the history of real-world policing that disproportionality impacts communities of color. Finally, big data policing faces legal uncertainty as old constitutional doctrines built on small data principles no longer work in the new big data age. The future path of traditional Fourth Amendment law is uncertain, dark, and distorted.

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March 29, 2018 | Permalink | Comments (0)

Wednesday, March 28, 2018

Wells on Constitutional Remedies for Wrongful Convictions

(Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
 
This article examines the U.S. Supreme Court’s Nelson v. Colorado opinion, in which the Court addressed the novel issue of remedies for persons wrongly convicted of crimes. Governments routinely deprive criminal defendants of both liberty and property upon conviction, and do so before giving them a chance to appeal their convictions and sentences. When a conviction is overturned, the state typically refunds fines and most other monetary exactions but seldom compensates for the loss of liberty. In Nelson, the Supreme Court addressed an unusual case in which the state did not return the money and that refusal was approved (purportedly on the authority of a Colorado statute) by the Colorado Supreme Court. With only Justice Thomas dissenting, the Supreme Court held that Nelson was entitled to a refund, as a matter of procedural due process, but seemed to approve of the liberty/property distinction. This article argues, first, that the Court’s procedural due process analysis skips over the logical first step of identifying Nelson’s constitutionally protected property interest: second, that the Court could have sidestepped that difficulty by focusing instead on the inadequacy of the state ground on which the Colorado Supreme Court based its ruling; and third, that property is distinguished from liberty in a more convincing way in Justice Alito’s opinion concurring in the judgment.

March 28, 2018 | Permalink | Comments (0)

Kerr on Cross-Enforcement of the Fourth Amendment

Kerr orinOrin S. Kerr (University of Southern California Gould School of Law) has posted Cross-Enforcement of the Fourth Amendment (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:
 
This Article considers whether government agents can conduct searches or seizures to enforce a different government’s law. For example, can federal officers make stops based on state traffic violations? Can state police search for evidence of federal immigration crimes? Lower courts are deeply divided on the answers. The Supreme Court’s decisions offer little useful guidance because they rest on doctrinal assumptions that the Court has since squarely rejected. The answer to a fundamental question of Fourth Amendment law – who can enforce what law – is remarkably unclear.

After surveying current law and constitutional history, the Article offers a normative proposal to answer this question.

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March 28, 2018 | Permalink | Comments (0)

Koops et al. on Remaining Unobserved

Bert-Jaap KoopsBryce Clayton NewellAndrew J. RobertsIvan Škorvánek and Maša Galič (Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT), University of Kentucky, Melbourne Law School, Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) and Tilburg University - Tilburg Institute for Law, Technology, and Society) has posted The Reasonableness of Remaining Unobserved: A Comparative Analysis of Visual Surveillance and Voyeurism in Criminal Law (Law and Social Inquiry, 2018) on SSRN. Here is the abstract:
 
The criminalization of offensive, privacy‐intrusive behavior is an important form of privacy protection. However, few studies exist of visual observation in criminal law. We address this gap by researching when nonconsensual visual observation is deemed harmful enough to trigger criminal sanctions, and on what basis the law construes the “reasonableness of remaining unobserved,” through a nine‐country comparative study. We distinguish between voyeurism‐centric approaches (focusing largely on nudity and sex) and broader, intrusion‐centric approaches (such as observation inside closed spaces). Both approaches explicitly or implicitly reflect “reasonable” privacy expectations, listing criteria for situations in which people can reasonably expect to remain unobserved or unrecorded. We present a framework for criminalizing non-consensual visual observation, encompassing factors of technology use, place, subject matter, and surreptitiousness, supplemented by factors of intent, identifiability, and counter‐indicators to prevent over‐criminalization. This framework is relevant for protecting visual aspects of privacy in view of individuals' underlying autonomy interests.

March 28, 2018 | Permalink | Comments (0)