CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

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Rank	Paper	Downloads
1.	Why Do Rule 48(a) Dismissals Require 'Leave of Court'? Thomas Frampton University of Virginia School of Law Date Posted: 08 Jul 2020	2,732
2.	An Abolitionist Horizon for (Police) Reform Amna A. Akbar Ohio State University (OSU) - Michael E. Moritz College of Law Date Posted: 11 Aug 2020 [3rd last week]	484
3.	The Questionable Objectivity of Fourth Amendment Law Orin S. Kerr University of California, Berkeley School of Law Date Posted: 12 Aug 2020 [4th last week]	304
4.	Constructing Separate and Unequal Courtrooms Ion Meyn University of Wisconsin Law School Date Posted: 27 Jul 2020 [6th last week]	179
5.	Qualified Immunity's Boldest Lie Joanna C. Schwartz University of California, Los Angeles (UCLA) - School of Law Date Posted: 27 Jul 2020 [7th last week]	176
6.	Policing Procedural Error in the Lower Criminal Courts Justin Murray New York Law School Date Posted: 11 Sep 2020 [new to top ten]	139
7.	Post-2013 Reforms of the Chinese Courts and Criminal Procedure: An Introduction Björn Ahl Institute of East Asian Studies, University of Cologne Date Posted: 06 Aug 2020 [8th last week]	120
8.	Crisis and Coercive Pleas Thea Johnson Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 24 Jun 2020 [9th last week]	114
9.	'Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia Michael L. Perlin, Talia Roitberg Harmon and Sarah Wetzel New York Law School, Niagara University and Niagara University - Department of Criminal Justice Date Posted: 27 Jul 2020 [10th last week]	107
10.	Unmuted: Solutions to Safeguard Constitutional Rights in Virtual Courtrooms and How Technology Can Expand Access to Counsel and Transparency in the Criminal Justice System Matt Bender University of Arkansas Law School Date Posted: 13 Aug 2020 [new to top ten]	101

Baughman & Wright on Prosecutors and Mass Incarceration

Shima Baradaran Baughman and Megan S. Wright (University of Utah - S.J. Quinney College of Law and The Pennsylvania State University (University Park) – Penn State Law) have posted Prosecutors and Mass Incarceration (Southern California Law Review, Forthcoming) on SSRN. Here is the abstract:

 

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court filings. Why?

Abrams on The Legislative History of the Early Mail Fraud Statutes

Norman Abrams (UCLA Law School) has posted Uncovered: The Legislative Histories of the Early Mail Fraud Statutes on SSRN. Here is the abstract:

 

The federal crime of mail fraud is generally viewed as the original federal auxiliary jurisdiction crime—that is, not made a crime because it serves to protect direct federal interests against harm, but rather as an auxiliary to state crime enforcement. Mail fraud is also a crime that scholars, judges and lawyers have viewed as not having any significant legislative history linked to its original enactment in 1872, nor to its two early revisions in 1889 and 1909.

This paper uncovers and elaborates on legislative history details related to each of those three legislative enactments and, along the way, presents a more nuanced view of the status of mail fraud as the original federal auxiliary jurisdiction crime.

Murray on Harmless Error

Justin Murray (New York Law School) has posted Policing Procedural Error in the Lower Criminal Courts (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the outcome below. This limitation impedes effective oversight of the lower courts in two significant ways. First, it enables trial judges, prosecutors, and other relevant entities (such as a district attorney’s office, to name one example) to persistently evade accountability for procedural errors, diminishing their incentives to comply with legal norms. And second, it provides reviewing courts with a handy tool to avoid resolving legal claims on their merits. Instead of holding that an error did or did not occur, thereby helping trial judges, prosecutors, and others learn what the law requires going forward, reviewing courts can—and often do—affirm on factbound harmless error grounds without ever adjudicating the legality of the challenged conduct.

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Albert et al. on Online Trafficking

Kendra Albert, Emily Armbruster, Elizabeth Brundige, Elizabeth Denning, Kimberly Kim, Lorelei Lee, Lindsey Ruff, Korica Simon and Yueyu Yang (Harvard Law School, affiliation not provided to SSRN, Cornell University - Law School, affiliation not provided to SSRN, affiliation not provided to SSRN, affiliation not provided to SSRN, affiliation not provided to SSRN, Cornell University - Law School and affiliation not provided to SSRN) have posted FOSTA in Legal Context on SSRN. Here is the abstract:

 

In the spring of 2018, Congress passed the Allow States and Victims to Fight Online Trafficking Act of 2017 (FOSTA), which made changes to three federal statutory schemes: the Communications Decency Act, the Trafficking Victims Protection Act, and the Mann Act. Congressmembers claimed FOSTA would fix loopholes in those statutory schemes through which they believed websites such as Backpage.com had avoided liability for sex trafficking.

More than two years after its passage, only one prosecution has been brought under the new criminal provision, and FOSTA’s 230 exemptions have received very limited use. These provisions have, however, had widespread effects on internet companies. In this article, we put FOSTA into its legal context, exploring how its provisions relate to existing federal anti-prostitution and anti-trafficking laws. We highlight how the impact of FOSTA has been disconnected from the actual content of the legal changes, how statutory language creates broad areas of uncertainty, and how the law may be interpreted to reduce harm to sex working peoples.

Drechsler on EU Data Protection in a Law Enforcement Context

Laura Drechsler (Vrije Universiteit Brussel (VUB), LSTS, Interdisciplinary Research Group on Law Science Technology & Society) has posted The Achilles Heel of EU Data Protection in a Law Enforcement Context: International Transfers Under Appropriate Safeguards in the Law Enforcement Directive (Cybercrime: New Threats, New Responses (Proceedings of the XVth International Conference on Internet, Law & Politics. Universitat Oberta de Catalunya, Barcelona, 1-2 July, 2020), e-book, Huygens Editorial 2020) on SSRN. Here is the abstract:

 

In May 2018, EU data protection rules were not only reformed by the General Data Protection Regulation (GDPR) but also by the Law Enforcement Directive (LED). While the LED is often overshadowed by the GDPR, it nevertheless did introduce a number of crucial reforms to data protection in a law enforcement context in the EU including harmonized rules on how personal data in a law enforcement context can be transferred to other law enforcement authorities in third countries. Formally the LED rules on international transfers of personal data to third countries aim at guaranteeing that the level of protection for personal data in a law enforcement context within the EU is not undermined as soon as personal data leaves EU territory. Taking a closer look however reveals major issues with the rules foreseen for transfers in the LED as they often come down to law enforcement authorities self-assessing whether a third country would offer adequate protection within the meaning of the standard of essential equivalence as established by the Court of Justice of the European Union (CJEU) in Schrems.

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Horton & Weisbord on Inheritance Crimes

David Horton and Reid K. Weisbord (University of California, Davis - School of Law and Rutgers Law School) have posted Inheritance Crimes (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The civil justice system has struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust—mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits a killer from inheriting from her victim—has generated decades of constitutional challenges.

But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized financial exploitation of an elder, which includes obtaining assets through undue influence. Likewise, prosecutors are bringing theft charges against people who accept transfers from mentally diminished owners. Finally, legislatures are experimenting with abuser statutes that extend the slayer doctrine by barring anyone from receiving property from the estate of a senior citizen whom they mistreated.

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Conklin on Race, Age, and Crime Statistics

Michael Conklin (Angelo State University) has posted Are Black Crime Statistics Inflated? Age-Adjusted Rates Paint a More Accurate Picture on SSRN. Here is the abstract:

 

This study exposes how traditional murder rate statistics misleadingly inflate the black murder rate. This is due to the shorter life expectancy of blacks which results in disproportionate numbers in younger age groups where the majority of criminal perpetrators are located. This first-of-its-kind research demonstrates that when age disparities are adjusted for, crime rate disparities between blacks and whites are reduced by 28%. This is significant because misleading crime statistics are often presented as evidence to justify policing practices that disproportionately affect blacks. Also discussed is the role politicians and the media play in disseminating racial distortions regarding crime. Additionally, potential explanations are provided for why misleading non-age-adjusted murder rates are used. Finally, potential explanations for an unexpected finding of the research are examined, which helps illuminate the race and crime connection more broadly.

Medina et al. on The Unintended Consequences of the U.S. Adversarial Model in Latin America

Angela Zorro Medina, Camilo Acosta and Daniel Mejia (University of Chicago - Department of Sociology, Universidad EAFIT - School of Economics and Finance - Center for Research in Economic & Finance (CIEF) and Universidad de los Andes, Colombia - Department of Economics) have posted The Unintended Consequences of the U.S. Adversarial Model in Latin American Crime on SSRN. Here is the abstract:

 

During the 1990s, Latin America experienced a criminal procedural revolution (LACPR) when approximately 70% of its countries abandoned their inquisitorial system and adopted the U.S. adversarial model. Following the LACPR, the region experienced a dramatic increase in crime, consolidating it as one of the most violent areas in the world. Despite previous empirical evidence indicating that procedural law affects criminal behavior, the effects of the LACPR continue highly unexplored. In this paper, we use the Latin American case to evaluate the impact of an adversarial reform on crime rates. Exploiting the quasi-experimental implementation of the reform in Colombia, we use an event study approach combined with differences-in-differences to estimate the reform’s effects on criminal activity. Despite the opposite incentives the reform created, we find an increase associated with the procedural transformation in overall crime rates (22%), violent crime (15%), and property crime (8%). We also observe a dramatic decrease in drug offenses associated with lower arrest rates. Our findings contribute to the literature on Latin American crime and the link between procedural law and criminal behavior.

Cassell on Homicide Spikes and the "Minneapolis Effect"

Paul G. Cassell (University of Utah - S.J. Quinney College of Law) has posted Explaining the Recent Homicide Spikes in U.S. Cities: The 'Minneapolis Effect' and the Decline in Proactive Policing (Federal Sentencing Reporter, Forthcoming 2020) on SSRN. Here is the abstract:

 

Recently major cities across the country have suffered dramatic spikes in homicides. These spikes are remarkably large, suddenly appearing, and widespread. At this rate, 2020 will easily be the deadliest year in America for gun-related homicides since at least 1999, while most other major crime categories are trending stable or slightly downward.

This article attempts to explain why so many cities have seen extraordinary increases in murder during the summer of 2020. A close analysis of the emerging crime patterns suggests that American cities may be witnessing significant declines in some forms of policing, which in turn is producing the homicide spikes. Crime rates are increasing only for a few specific categories—namely homicides and shootings. These crime categories are particularly responsive to reductions in proactive policing. The data also pinpoint the timing of the spikes to late May 2020, which corresponds with the death of George Floyd while in police custody in Minneapolis and subsequent anti-police protests—protests that likely led to declines in law enforcement.

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Bergelson on The Depths of Malice

Vera Bergelson (Rutgers Law School - Newark) has posted The Depths of Malice on SSRN. Here is the abstract:

 

The Model Penal Code (“MPC”) revision of the traditional mens rea provisions has been almost uniformly recognized as an immense success. The MPC framework has been extremely influential: it has been adopted explicitly in more than a half of American jurisdictions, and it often guides judicial interpretation of mens rea in the remaining jurisdictions as well. However, the MPC may have lost some important insights in departing from the traditional mens rea criteria. In this paper, I suggest that, in its strive for simplification, rationality, and utility, the MPC has sacrificed some of the moral complexity of the traditional, common-law mens rea categories. Specifically, I argue that the common-law category of malice is doctrinally important and its abandonment affects the fairness and coherence of the entire body of criminal law.

Gershowitz on Judicially Mandated Ethics Instruction for Prosecutors

Adam M. Gershowitz (William & Mary Law School) has posted The Race to the Top to Reduce Prosecutorial Misconduct (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This essay offers an unconventional approach to deter prosecutorial misconduct. Trial judges should use their inherent authority to forbid prosecutors from appearing and handling cases in their courtrooms until the prosecutors have completed training on Brady, Batson, and other types of prosecutorial misconduct. If a single trial judge in a medium-sized or large jurisdiction imposes training prerequisites on prosecutors it could set off a race to the top that encourages other judges to adopt similar (or perhaps even more rigorous) training requirements. A mandate that prosecutors receive ethics training before handling any cases is comparable to the enhanced training requirements that some state legislatures impose on indigent defense lawyers. This essay argues that trial judges arguably have the inherent authority to impose a training requirement on prosecutors to ensure the orderly administration of justice.

Baker & Oberman on Consent and Rape

Katharine K. Baker and Michelle Oberman (Chicago-Kent College of Law - Illinois Institute of Technology and Santa Clara University - School of Law) have posted Consent, Rape and the Criminal Law (The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna Williams, eds.), Oxford University Press, 2021 (Forthcoming)) on SSRN. Here is the abstract:

 

The story of US criminal rape law reform tends to be told as one of remarkable feminist success (between 1970–1990, feminist-led coalitions changed state laws so that rape ceased to be a crime requiring force and resistance and became instead a crime that only required sex without consent) followed by widespread stagnation. Despite comprehensive changes in the law, reporting rates, prosecution rates and conviction rates for rape increased only slightly. This essay resists that binary account of success and failure by offering a more nuanced assessment. First, it explores the full range of factors hindering the reporting, prosecution and conviction of rape crimes, including the role played by social norms. Second it argues that, by changing rape’s definition to an inquiry focused upon whether the victim consented, the law has facilitated a shift in cultural and institutional norms governing unwanted sex. In short, the law’s message that unwanted sex is wrong matters. It is naïve to think that a change in law would, on its own, end rape culture. But there is ample evidence to support the conclusion that rape law reform has played a central role in reducing society’s tolerance of the rape prerogatives that have held sway for millennia.

Silverio-Murillo et al. on Confinement, Domestic Violence, and Alcohol Consumption

Adan Silverio-Murillo, Jose Roberto Balmori de la Miyar and Lauren Hoehn-Velasco (School of Government, Tecnologico de Monterrey, University Anahuac Mexico, Business and Economics School and Georgia State University - Andrew Young School of Policy Studies) have posted Families under Confinement: COVID-19, Domestic Violence, and Alcohol Consumption on SSRN. Here is the abstract:

 

Does the COVID-19 stay-at-home order increase domestic violence? The significant decline in household income combined with prolonged confinement with the potential assailant may increase household conflict. Despite these plausible reasons for an increase in household violence, economic theory predicts that domestic violence depends on the income distribution within the household. To test these effects empirically, we estimate the impact of the COVID-19 lockdown on domestic violence using two different data sources in Mexico City. First, we utilize call-center data from a domestic violence hotline (Línea Mujeres), and, then, we corroborate the call-center findings using official police reports. Using an event-study design, we find domestic violence calls for legal services decreased, however, domestic violence-related calls for psychological services held constant and even increased in certain weeks. Then, we consider the effect on official police reports and find that domestic violence police reports declined. We conclude by considering the differential effects of three local policies: food assistance, the prohibition of alcohol sales, and support to micro-entrepreneurs. We discover suggestive evidence that food assistance and support to micro-entrepreneurs mitigated domestic violence, but the alcohol ban did little to prevent household violence.

Holper on Electronic Monitoring

Mary Holper (Boston College - Law School) has posted Immigration E-Carceration: A Faustian Bargain on SSRN. Here is the abstract:

 

Immigration detainees and their advocates have a Faustian Bargain: they may trade the physical walls of jail for the virtual walls of electronic monitoring. But they are merely begging for a different form of punishment and control, since electronic monitoring imposes pain, shame, arbitrary rules, and limitation of freedom on persons, causing many to experience it as punitive. Its use also facilitates replacing a regime of over-detention with one of over-supervision, and becomes the means by which immigration enforcement authorities surveil immigrant communities. The Supreme Court’s immigration detention doctrine has set up this bargain by succumbing to the plenary power’s defenders. Instead of outright freedom, the Court has offered release under restrictive supervision policies utilized by the immigration authorities. Supervision through electronic monitoring has come to reside doctrinally in the middle ground between absolute freedom and incarceration. Yet as we have learned from electronic monitoring’s use in the criminal justice system, this “middle ground” ceded too much ground. This article explains, for the first time, how the Court’s immigration detention doctrine and perverse pull of the plenary power has carved out a doctrinal space where electronic monitoring now resides.

Thusi on Beauty and Policing

I. India Thusi (Widener University - Delaware Law School) has posted On Beauty & Policing (Northwestern University Law Review, Vol. 114, No. 5, 2020) on SSRN. Here is the abstract:

 

“To protect and serve” is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers’ perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and serve us all.

This Article examines how police preserve racial and gender subordination in South Africa, an instructive analog for the United States because of both nations’ shared histories of racial apartheid and valorization of whiteness.

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Cole & Scheck on Fingerprints and Miscarriages of Justice

Simon A. Cole and Barry Scheck (University of California, Irvine - Department of Criminology, Law and Society and Professor of Law, Cardozo Law School, Co Founder Innocence Project, Partner, Neufeld Scheck & Brustin) have posted Appendix to 'Fingerprints and Miscarriages of Justice: 'Other' Types of Error and a Post-Conviction Right to Database Searching,' (Albany Law Review, Vol. 81, No.3, 2017- 2018) on SSRN. Here is the abstract:

 

This Appendix gives one case example of each fingerprint error type discussed in Table 3 of the Article “Fingerprints and Miscarriages of Justice: ‘Other’ Types of Error and A Post-Conviction Right to Database Searching,” for which we know of an actual case. Cases were selected for recentness, novelty (not widely discussed elsewhere in the literature), and the degree to which they illustrate the problem we are discussing. In footnotes, we also list the other known cases of this error type.

Bowers on Recidivism and Crime Licenses

Josh Bowers (University of Virginia School of Law) has posted What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life on SSRN. Here is the abstract:

 

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly. In this article, I question that assumption and propose a radical alternative. Consider the individual punished repeatedly for hopping subway turnstiles. As convictions accumulate, sentences rise—to weeks and ultimately months in jail. At some point, criminality comes to signal something other than the need for punishment. It signals the presence of need. Perhaps, the recidivist was compelled by economic or social circumstances. Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one. No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences. My claim is that, in these circumstances, it would be better to just stop punishing.

To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists. But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution.

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Ivandic et al. on Domestic Abuse During Lockdown

Ria Ivandic, Tom Kirchmaier and Ben Linton (London School of Economics & Political Science (LSE) - Centre for Economic Performance (CEP), London School of Economics - Centre for Economic Performance and Metropolitan Police Service) have posted Changing Patterns of Domestic Abuse during COVID-19 Lockdown on SSRN. Here is the abstract:

 

The effects of preventing a COVID-19 health crisis have had unintended consequences on domestic abuse (DA) victimization. We contribute to the literature on domestic abuse in lockdown by providing insight on how changing patterns of domestic abuse can explain differences in magnitudes reported across studies. We examine the patterns of domestic abuse during the COVID-19 lockdown in Greater London and find that the lockdown changed the nature of reporting and the type of relationship the abuse occurs within. While abuse by current partners as well as family members increased on average by 8.1% and 17.1% respectively over the lockdown period, abuse by ex-partners declined by 11.4%. These findings show that reporting the average change in domestic abuse during lockdown can be misleading when designing a policy response. Moreover, we show that all the increase in DA calls is driven by third party reporting, particularly evident in areas with high density. This suggests that under reporting is present in the lockdown, particularly in households where the abuse cannot be reported by an outsider. Although these findings pertain to the COVID-19 lockdown, they also highlight the role that victim exposure and proximity has in affecting domestic abuse.

Zabel on Public Surveillance Through Private Eyes

Joseph (Joe) Zabel (Stanford Law School) has posted Public Surveillance Through Private Eyes: The Case of the EARN IT Act and the Fourth Amendment (2020 U. Ill. L. Rev. Online 167) on SSRN. Here is the abstract:

 

A critical question (under the original or the amended statute) is whether the EARN IT Act deputizes Interactive Computer Service Providers (ICSPs) as outsourced private surveillance agents, such as to lay the groundwork for a springing Fourth Amendment violation. In that vein, this article proceeds in the following manner. First, it provides a brief explanation of Section 230 and the EARN IT Act. It then discusses the Fourth Amendment implications of the Act: 1) whether either iteration of the Act deputizes ICSP surveillance; 2) if it does, to what extent do individuals retain a reasonable expectation of privacy with respect to the content they post on ICSPs?; and 3) finally, are the actions “encouraged” by the EARN IT Act otherwise reasonable under the “special needs” exception to the Fourth Amendment?