CrimProf Blog

Zaccour on The BDSM Defense in Sexual Assault Cases

Suzanne Zaccour (University of Oxford, Faculty of Law) has posted an abstract of ‘I’m Telling You, She Likes it Rough’: Sexual History Evidence, Consent and the BDSM Defense in Canadian Sexual Assault Trials ((2021) Child and Family Law Quarterly, Vol. 4) on SSRN. Here is the abstract:

 

When a violent sexual assault is caught on video or results in injuries, defendants sometimes claim that the sexual activity was consensual BDSM or 'rough sex'. This article seeks to understand the impact of this strategy when the complainant has previously engaged in atypical sexual activity.

The study of Canadian admissibility rulings and trial decisions shows that sexual history evidence is primarily used to support the legally prohibited inference that because a woman consented to rough sex in the past, she is more likely to have consented to the sexual activity in question. Defendants rely on the argument that repeated sexual activity is less likely to be criminal: if it is routine, then it is not rape. This strategy relies on and reinforces myths and stereotypes about sexual violence, particularly partner/marital sexual violence.

Tokson on Privacy and Smart Meters

Matthew Tokson (University of Utah - S.J. Quinney College of Law) has posted Smart Meters as a Catalyst for Privacy Law (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Smart utility meters raise several puzzling legal questions—and answering them can help point the way toward the future of Fourth Amendment and civil privacy law. This forum essay addresses two such issues: use restrictions on collected data, and voluntary data disclosure.

First, more than any other current technology, smart meters compel the development of use restrictions on collected data. The benefits of smart meters are potentially enormous, such that categorically prohibiting public utilities from collecting smart meter data is likely beyond the pale. Yet allowing law enforcement agents to obtain detailed or intimate data about the home without a warrant seems equally unacceptable. Smart meters are the clearest example yet of the need for robust restrictions on how the government can use data it has collected. Government entities are already collecting personal information about citizens for a variety of legitimate, non-law enforcement purposes. Limiting access to such data will often be the best practical means to ensure citizen privacy in the era of big data.

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Crespo on Subverting Mass Incarceration Through Defendant Collective Action

Andrew Manuel Crespo (Harvard Law School) has posted No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action (Fordham Law Review, 2022) on SSRN. Here is the abstract:

 

The American penal system is a system of massive, oppressive, racially unjust incarceration. It is also, to quote the Supreme Court, a “system of pleas.” The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths. Mass incarceration is a predictable result.

But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point. That Achilles heel is exposed once we see people facing prosecution not as isolated individuals but rather as a potentially collective community of power. Organized to act together, this community has unique resources. Most notably, they have the power to say “not guilty” when asked “how do you plead?” If done together, this simple but profound act of resistance would grind the penal system to a halt. Courts and prosecutors simply do not have the resources to sustain mass incarceration while affording everyone accused of a crime the constitutionally guaranteed right to a trial. This fact is what makes plea bargaining so essential to mass incarceration in the first place. Plea bargaining unions, with their implicit power to threaten plea bargaining strikes, thus hold a potentially radical transformative power—a decarceral power, a democratic power—that arises from the penal system’s massive overextension.

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Perlin & Harmon on Competency and Execution

Michael L. Perlin and Talia Roitberg Harmon (New York Law School and Niagara University) have posted 'Insanity Is Smashing up Against My Soul': The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman (University of Louisville Law Review, Forthcoming) on SSRN. Here is the abstract:

 

One of the open secrets of death penalty law and policy is the astonishingly high percentage of individuals on death row with serious mental disabilities. This is well known to lawyers who represent this cohort (and presumably, equally well known to the district attorneys who nevertheless prosecute them and the judges who try and sentence them), but is not generally discussed in the press nor, certainly, in political discourse. In the aggregate, this is far beneath society’s radar.

It is now over 14 years since the US Supreme Court decided a case that clarified the underlying issues. In Panetti v. Quarterman, 551 U.S. 930 (2007), it ruled that such a defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution,” expanding its jurisprudence in this area beyond its first modern foray into this area of the law in Ford v. Wainwright, 477 U.S. 399 (1986), some two decades earlier. Ford had regularly been interpreted to require that competency-to-be-executed depended only on three findings: that the prisoner is aware he committed the murders, that he is going to be executed, and he is aware of the reasons the State has given for his execution.

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McCannon & Porreca on Counsel in 19th Century London

Bryan C. McCannon and Zachary Porreca (West Virginia University - College of Business & Economics and West Virginia University, College of Business & Economics, Department of Economics, Students) have posted The Right to Counsel: Criminal Prosecution in 19th Century London on SSRN. Here is the abstract:

 

Exploiting a novel data set of criminal trials in 19th century London, we evaluate the impact of an accused’s right to counsel on convictions. While lower-level crimes had an established history of professional representation prior to 1836, individuals accused of committing a felony did not, even though the prosecution was conducted by professional attorneys. The Prisoners’ Counsel At of 1836 remedied this and first introduced the right to counsel in common law systems. Using a difference-in-difference estimation strategy we identify the causal effect of defense counsel. We find the surprising result that the professionalization of the courtroom lead to an increase in the conviction rate, which we interpret as a consequence of jurors feeling that the trial became fairer. We go further and employ a topic modeling approach to the text of the transcripts to provide suggestive evidence on how the trials changed when defense counsel was fully introduced.

Ryan on Compensation for Wrongful Conviction

Meghan J. Ryan (Southern Methodist University - Dedman School of Law) has posted Compensation for Wrongful Conviction and Incarceration in the United States on SSRN. Here is the abstract:

 

Wrongfully convicted and incarcerated individuals in the United States may seek compensation by various means. Traditional common-law tort and civil rights actions are sometimes used as vehicles for recovery, but claimants often recover on these claims in only the most egregious cases due to various immunity defenses and claimants’ inability to establish elements such as a lack of probable cause to arrest or prosecute. Some claimants have found success through moral bills of obligation, but this, too, is quite limited because exonerees often lack the political power necessary to push through such legislation. Claimants are most likely to find compensation for wrongful conviction and incarceration through jurisdictions’ wrongful conviction compensation statutes. Not all jurisdictions have passed such statutes, however, and the existing statutes vary considerably in terms of their requirements for and amounts of compensation. Although these statutes are generally exonerees’ best hopes for recovery, they are often quite unsatisfactory in the compensation that they actually provide. The minimal compensation is at least in part due to jurisdictions’ concerns about the high price tag of adequately compensating wrongfully convicted and incarcerated persons, but there are steps jurisdictions can take to limit the number of wrongful convictions and also mitigate the damages flowing from these wrongs.

Heise & Nance on Data About the School-to-Prison Pipeline

Michael Heise and Jason P. Nance (Cornell Law School and University of Florida Levin College of Law) has posted 'Defund the (School) Police'?: Bringing Data to Key School-to-Prison Pipeline Claims (111 J. Crim. L. & Criminology 717 (2021)) on SSRN. Here is the abstracct:

 

Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether it involves referrals to law enforcement agencies matter, particularly as they may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline and the growing number of calls for schools to defund SRO/police programs. One claim is that public schools’ increasingly “legalized” approach toward student discipline increases the likelihood that students will be thrust into the criminal justice system.

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Wolf on Sentencing and Autism Spectrum Disorder

Gabrielle Wolf (Deakin University, Geelong, Australia - Deakin Law School) has posted Growing Enlightenment: Sentencing Offenders With Autism Spectrum Disorder in Australia (University of New South Wales Law Journal, Vol. 44, No. 4, 2021) on SSRN. Here is the abstract:

 

The number of defendants raising an Autism Spectrum Disorder (‘ASD’) diagnosis in criminal proceedings is increasing. Australian courts treat this neurodevelopmental disorder as a mental impairment that they may take into account in sentencing. A few studies nonetheless exposed deficiencies in judicial officers’ understanding of ASD symptoms and their potential forensic relevance. Courts’ willingness to rely on expert evidence did not always lead to them sentencing offenders with ASD in a consistent or enlightened manner. Building on those investigations and drawing on research into ASD, this article examines sentencing decisions involving eight offenders with ASD in various Australian jurisdictions between 2014 and 2020. This analysis demonstrates that judicial officers’ knowledge about ASD and appreciation of its possible relevance to sentencing considerations are growing, but there remain gaps in both respects. The article speculates on possible reasons for this and proposes reforms to improve courts’ approaches to sentencing offenders with ASD.

O'Leary on Compassionate Release and Decarceration

Renagh O'Leary (University of Wisconsin Law School) has posted Compassionate Release and Decarceration in the States (107 Iowa L. Rev. (forthcoming 2022)) on SSRN. Here is the abstract:

 

Though the U.S. prison population has declined slightly over the last decade, progress toward decarceration has been exceedingly modest. Creating or expanding mechanisms for early release from prison could help accelerate the pace of decarceration. Compassionate release early release from prison based on a serious or terminal medical condition"is the only early release mechanism available in nearly every state. This Article uses compassionate release as a case study in the possibilities and limits of early release measures as tools for decarceration in the states. So far, decarceral reforms have largely failed to reach people convicted of violent crimes, who account for over half of the state prison population. The challenge presented by the prevalence of violent convictions is particularly acute for compassionate release. People age 55 and older, who make up a significant and growing share of people in state prisons, are the age group most likely to qualify for compassionate release. They are also the age group most likely to be incarcerated for violent convictions. This Article identifies the significant barriers that people incarcerated for violent convictions face when seeking compassionate release even when they are not outright barred by their convictions. This Article argues that to be effective tools for decarceration, compassionate release and other early release measures must reduce the obstacles to release for people incarcerated for violent convictions. This Article models this approach with concrete suggestions for how states can reform their compassionate release measures to reach the hardest cases.

Jun on Accomplice Liability in Singapore

Toh Ding Jun (Faculty of Law, National University of Singapore) has posted The New Section 308A and the Law on Accessory Liability on SSRN. Here is the abstract:

 

The 2020 amendments of the Penal Code have sharpened the Prosecution's sword where it comes to dealing with accomplice liability in unintended homicide situations. However, the question remains - does Singapore require so many provisions dealing with this area of the law? In this article, the authors first set out the landscape of the criminal law vis-à-vis accomplice liability before 2020 (Sections I and II). The discussion then turns to section 308A itself, with an exploration of its theoretical justifications and a critique of section 308A's fit with the rest of the provisions dealing with accomplice liability (Section III). Here, the authors argue that it is not possible to apply section 308A in a principled fashion because of the unclear relationship that section 308A has with sections 34 and 149 (Section IV). Finally, the authors proffer an alternative approach, one that involves amending section 308A, so that there is greater coherence in the law dealing with accomplice liability (Section V).

Weller on Prosecutors and Access to Justice for the Disabled

Penelope Weller (RMIT University) has posted Police Prosecution and Access to Justice for People with Disabilities (Victoria Colvin and Philip Stenning (eds) The Evolving Role of the Public Prosecutor Challenges and Innovations, Routledge, 2019) on SSRN. Here is the abstract:

 

The Convention on the Rights of Persons with Disabilties requires a reconsideration of the taken for granted pracitices that inhibit access to justice for those with disabilities. This chapter discusses the potential role of prosecutors in improving the justice system response.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Moral Panic and the War on Drugs Phil Lord Lakehead University - Bora Laskin Faculty of Law Date Posted: 29 Nov 2021	195
2.	The Rise and Fall of Muruatetu: Revisiting Death Sentence in Kenya Ronald Bwana Mount Kenya University Parklands Law Campus Date Posted: 19 Jul 2021	151
3.	Error Aversions and Due Process Brandon L. Garrett and Gregory Mitchell Duke University School of Law and University of Virginia School of Law Date Posted: 05 Jan 2022 [new to top ten]	115
4.	The Constitutionality of Excluding Duress as a Defence to Murder Colton Fehr Simon Fraser University Date Posted: 25 Oct 2021 [3rd last week]	101
5.	A Restatement of Corporate Criminal Liability's Theory and Research Agenda Samuel W. Buell Duke University School of Law Date Posted: 08 Dec 2021 [4th last week]	76
6.	Rape and Law in Medieval Western Europe Gwen Seabourne University of Bristol Law School Date Posted: 18 Nov 2021 [5th last week]	49
7.	The Forlorn Hope: A Final Attempt to Storm the Fortress of Corporate Criminal Liability John Hasnas Georgetown University - Robert Emmett McDonough School of Business Date Posted: 24 Nov 2021 [6th last week]	43
8.	The Day Canada Said No to the Death Penalty in the United States: Innocence, Dignity, and the Evolution of Abolitionism Mugambi Jouet McGill Faculty of Law Date Posted: 01 Dec 2021	42
9.	On the Law of Self-Defense (And Why Transparency About our Value-Judgments is the Missing Piece in Today's Justice Reform Debate) T. Markus Funk PhD and T. Markus Funk PhD University of OxfordUniversity of Colorado School of Law Date Posted: 19 Nov 2021	41
10.	'That's Not a Knife . . .' Or Is It? Virginia's Problematic Concealed Weapons Law J. Alex Touchet Regent University, School of Law Date Posted: 28 Dec 2021 [new to top ten]	28

Next week's criminal law/procedure argument

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

Wednesday

• Concepcion v. U.S.: Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.

Friday's criminal law/procedure cert grants

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

• Vega v. Tekoh: Whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda v. Arizona.
• Nance v. Ward: (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.
• Shoop v. Twyford: (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in 28 U.S.C. § 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Katz as Originalism Orin S. Kerr University of California, Berkeley School of Law Date Posted: 28 Jul 2021 [new to top ten]	608
2.	Buying Data and the Fourth Amendment Orin S. Kerr University of California, Berkeley School of Law Date Posted: 08 Jul 2021 [1st last week]	310
3.	No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action Andrew Manuel Crespo Harvard Law School Date Posted: 11 Jan 2022 [new to top ten]	303
4.	Preservation Letters and Fourth Amendment Seizures: A Response to Professor Kerr Michael L Levy University of Pennsylvania Carey Law School - Student/Alumni/Adjunct Date Posted: 01 Dec 2021 [2nd last week]	172
5.	Black Voices Matter Too: Counter-Narrating Smithers v The Queen Amar Khoday University of Manitoba - Faculty of Law Date Posted: 10 Dec 2021 [7th last week]	165
6.	The Bailable v. Non-Bailable Classification in Indian Criminal Procedure Abhinav Sekhri Delhi High Court Date Posted: 08 Jul 2021 [3rd last week]	153
7.	The Original Criminal Jury Jeff Hetzel Independent Date Posted: 22 Dec 2021 [9th last week]	146
8.	The Tesla Meets the Fourth Amendment Adam M. Gershowitz William & Mary Law School Date Posted: 18 Nov 2021 [6th last week]	145
9.	Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System Anna D. Vaynman and Mark Robert Fondacaro John Jay College - CUNY Graduate Center and John Jay College - CUNY Graduate Center Date Posted: 16 Nov 2021 [4th last week]	139
10.	Grounding Legal Proof Michael S. Pardo Georgetown University Law Center Date Posted: 10 Sep 2021 [5th last week]	133

Weller on Neuro-Disabilities and Access to Justice

Penelope Weller (RMIT University) has posted Access to Justice and the DRPD - An Australian Perspective (Gaye Lansdell, Bernadette Saunders and Anna Eriksson (eds) Neurodisability in the Criminal Jusitce System: comparative and therapeutic responses, Edward Elgar, 2021) on SSRN. Here is the abstract:

 

The over-representation of people with neuro-disabilities and acquired brain injury suggest that criminal justice processes are characterised by entrenched and systemic discrimination on the basis of disability. As a party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) Australia accepts the obligation to ensure that people with disabilities, including those with neuro-disabilities and acquired brain injury, are able to access and participate in criminal justice processes on an equal basis with others. This chapter considers recent Australian responses to the access justice debates in light of the access to justice obligations in the CRPD. It argues that the CRPD invites us to adapt and implement procedural justice reforms in a way that will promote the equal participation of those with disabilities and limit the opportunity for discrimination on the basis of disability.

Jordan et al. on Impacts of Sentencing Decisions

Andrew Jordan, Ezra Karger and Derek A. Neal (Washington University in St. Louis, Federal Reserve Bank of Chicago and University of Chicago - Department of Economics) has posted Heterogeneous Impacts of Sentencing Decisions on SSRN. Here is the abstract:

 

We examine 70,581 felony court cases filed in Chicago, IL during the period 1990-2007. We exploit case randomization to assess the impact of judge assignment and sentencing decisions on the arrival rates of new charges. Relative to prior research, we document an important source of heterogeneity in the impact of incarceration on recidivism. Incarceration creates lasting reductions in recidivism among first offenders but not repeat offenders. We present suggestive evidence that these reductions among first offenders primarily reflect outcomes for offenders who live in lower-crime areas of the city and are not involved in the drug trade. During our sample period, Illinois parole officers were able to issue arrest warrants for former inmates under their supervision. These powers place former inmates at significant risk of returning to prison as punishment for violations of technical conditions of their supervision. However, we find no evidence that these police powers increased the arrival rate of new charges against formerly incarcerated offenders. Incarceration does not reduce the arrival of new criminal charges among repeat offenders, and this outcome is not the result of parole officers over-policing repeat offenders.

Parks on Martial Arts and Racialized Police Violence

Gregory Scott Parks (Wake Forest University - School of Law) has posted Martial Arts as a Remedy for Racialized Police Violence on SSRN. Here is the abstract:

 

Over half a decade ago, law professor Cynthia Lee offered an intriguing argument in an article titled "Race, Policing, and Lethal Force: Remedying Shooter Bias with Martial Arts Training." In short, Professor Lee argued that if law enforcement had martial arts training, they would be less likely to incorrectly assume that Black suspects are armed, when they are not, and shoot them. Since the time of her article, police killings of unarmed and nonthreatening Blacks has persisted, resulting in a national outcry. In this article, I revisit Professor Lee’s argument in a more nuanced manner. First, I contend that police’s racialized fear emerges in a variety of ways and manifests itself in a number of ways, including—but not limited to—shootings. Second, I contend that one way for police to deal with this racialized fear and to more effectively, and less lethally, subdue and arrest suspects is not simply through the use of martial arts. Rather, it is via certain types of martial arts, namely those that do not require striking; instead, those that employ takedown techniques, joint manipulation, and nonlethal holds. I offer Brazilian jujitsu (“BJJ”) as an example.

Greenhouse on The Judicial Response to Terrorism

Linda Greenhouse has posted Two Decades After 9/11: The Judicial Response to Terrorism (A chapter from the published materials of Yale Law School's 2021 Global Constitutional Seminar) on SSRN. Here is the abstract:

The 2021 session of Yale’s Global Constitutional Seminar took place twenty years to the day of the terrorist attacks of September 11, 2001. In the United States and elsewhere, courts have played an important role in shaping the response to terrorist threats—real and imagined—by sometimes deferring to the judgments of the political branches and sometimes applying their own judgment as to what was required by law or rule-of-law principles. This Chapter explores the debates among judges, courts, and theorists about the role of courts in the immediate and long-term responses to terrorism in the post-9/11 world through the lens of three sets of questions. How much weight should judges ascribe to the exceptional nature of terrorism? To what degree are courts competent to consider challenges to national security measures? To what extent should constitutional rights be sacrificed in the name of security? Like other Chapters in this volume, these materials explore the ways in which courts have responded to a large wave of exceptional measures in a time of perceived emergency.

Hickey on A Vulnerability Approach to Police Misconduct

Jennifer Hickey (Emory University School of Law - Vulnerability and Human Condition Initiative) has posted From Apples to Orchards: A Vulnerability Approach to Police Misconduct (Texas Journal on Civil Liberties and Civil Rights, Vol. 26, No. 1, 2020) on SSRN. Here is the abstract:

 

Amid widespread acknowledgment that the criminal justice system has failed to hold police officers accountable for even the most egregious forms of misconduct, there have been increased calls for civil remedies as a means of securing justice. This article argues that constitutional litigation for damages against the government, focused on individual injury and often directed at individual “bad apple” police officers, is conceptually and empirically ill-suited to remedy or deter police misconduct on a systemic level.

Applying vulnerability theory, this article reframes police misconduct not as the result of individual actors intruding upon autonomous individuals’ rights to privacy or liberty, but rather as a failure of the state to provide physical safety resources needed for its citizens to achieve resilience in a just manner. This framing imposes a positive obligation on the state to examine the existing inequalities in policing practices.

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