CrimProf Blog

Indifference to a Human's Life vs. Human Life Generally

Here's a recent example of this odd (though not unique) and difficult-to-justify approach to homicide grading. Jurist reports on a recent Minnesota Supreme Court decision:

The Minnesota Supreme Court on Wednesday overturned the third-degree murder conviction of former Minneapolis police officer Mohamed Noor who fatally shot Justine Ruszczyk in 2017.

. . . .

In their opinion, the Supreme Court justices stated that, “because conduct that is directed with particularity at the person who is killed cannot evince a depraved mind, without regard for human life, Minn. Stat. § 609.195(a), and because the only reasonable inference that can be drawn from the circumstanced proved is that Noor directed his single shot with particularity at Ruszczyk,” the court concluded that Noor’s actions did not fit the definition of third-degree murder per the statute.

Greasley on Rape Trauma and Rape's Wrongness

Kate Greasley (University of Oxford, Faculty of Law) has posted Rape Trauma and Rape's Wrongness (Forthcoming book From Morality to Law and Back Again: Liber Amicorum for John Gardner, edited by M. Dempsey and F. Tanguay-Renaud) on SSRN. Here is the abstract:

 

In a widely discussed article co-authored with Stephen Shute, John Gardner offered a persuasive argument to the effect that the core wrongness of rape is not, as it seems, a function of the harmfulness of rape, but of something else: the rapist’s sheer sexual use of the victim, which is potentially harmless. In subsequent writing, partly in response to criticisms, Gardner sought to restate and clarify his view about the role of rape trauma in rape’s wrongness. A guiding thought in both his earlier and later work is that the reasonableness of distress and anguish as a response to rape suggests that those reactions respond to and evaluate a prior, harm-independent wrong, thus revealed as the more basic wrong of rape. More strongly, he argued, we must hold that rape trauma is only epiphenomenal to, or derivative of, rape’s basic wrongness, if we are to affirm the rationality of rape victims. In this short reappraisal, I focus most attention on this intriguing argument. Drawing on a comparison with the wrong of emotional abuse, I interrogate the argument from reasonable reactions and consider how to soften the choice it presents between affirming the rationality of rape victims and allowing that rape trauma partly grounds the distinctive wrongness of rape.

"European organizations urge Poland to change definition of rape and stop restricting press freedom"

From Jurist:

Several European organizations on Thursday called upon Poland to make changes to the legal definition of rape and condemned attacks on media and the free press.

The Council of Europe praised recent reforms allowing law enforcement to temporarily evict domestic abusers, but said that Poland should “align” its definition of rape with the requirements of the Istanbul Convention, urging the nation to “move away from a force-based definition to one covering all non-consensual sexual acts.” Of seventeen monitored countries, only Belgium, Malta, and Sweden have legal definitions that penalize rape based solely on non-consent. The Council noted that “Without a consent-based definition of rape in criminal law, prosecutors will ‘invariably decide’ against seeking an indictment in cases where the sexual act is undisputed, but consent is not.”

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021 [new to top ten]	263
2.	Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse Paul H. Robinson and Lindsay Holcomb University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct Date Posted: 17 Aug 2021 [1st last week]	97
3.	Black Lives Matter: Trayvon Martin, the Abolition of Juvenile Justice and #BlackYouthMatter Nancy E. Dowd University of Florida Levin College of Law Date Posted: 29 Jul 2021 [2nd last week]	69
4.	Carceral Progressivism and Animal Victims Benjamin Levin University of Colorado Law School Date Posted: 01 Sep 2021 [3rd last week]	59
5.	Should be Marijuana Legalized in India? Mohd Rameez Raza Faculty of Law, Integral University Date Posted: 16 Aug 2021 [4th last week]	51
6.	Amos Akerman: Grant's Attorney General Who Broke the Back of the Ku Klux Klan Allan A. Ryan Harvard University, Division of Continuing Education Date Posted: 27 Jul 2021 [5th last week]	50
7.	Restorative Retributivism Brian Murray Seton Hall Law School Date Posted: 12 Aug 2021 [6th last week]	49
8.	Expanding Compassion Beyond the COVID-19 Pandemic Katie Tinto and Jenny Roberts University of California, Irvine School of Law and American University - Washington College of Law Date Posted: 01 Sep 2021 [new to top ten]	48
9.	Editor's Introduction: New Topics in Sentencing Theory Jacob Bronsther Michigan State University - College of Law Date Posted: 11 Aug 2021 [8th last week]	45
10.	The Transnational Cybercrime Extortion Landscape and the Pandemic: Changes in Ransomware Offender Tactics, Attack Scalability and the Organisation of Offending David S. Wall Centre for Criminal Justice Studies, School of Law, University of Leeds Date Posted: 31 Aug 2021	40

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Inside the Black Box of Prosecutor Discretion Megan S. Wright, Shima Baradaran Baughman and Christopher T. Robertson The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University Date Posted: 28 Jul 2021	352
2.	The Trump Executions Lee Kovarsky University of Texas School of Law Date Posted: 27 Jul 2021	314
3.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021 [4th last week]	263
4.	Policing Suspicion: Qualified Immunity and 'Clearly Established' Standards of Proof Seth W. Stoughton, Kyle McLean, Justin Nix and Geoffrey Alpert University of South Carolina School of Law, Clemson University, University of Nebraska Omaha and University of South Carolina Date Posted: 09 Jul 2021 [6th last week]	90
5.	Sex Offender Registration and Community Notification Laws: An Empirical Evaluation Wayne A. Logan and J.J. Prescott Florida State University - College of Law and University of Michigan Law School Date Posted: 30 Jun 2021 [7th last week]	83
6.	Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 25 Jun 2021 [8th last week]	78
7.	Transparency's AI Problem Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 08 Jul 2021 [9th last week]	77
8.	Challenging Jurors' Racism Monnica Williams, Sonya Faber, Dana Strauss, Sophia Gran-Ruaz, Amy Bartlett, Maria Macaluso, Joseph La Torre and Ariana R. Levinson University of Ottawa - Department of Psychology, Angelini Pharma, University of Ottawa, Students, University of Ottawa, Students, University of Ottawa, Students, University of Louisville, Louis D. Brandeis School of Law, Students, University of Ottawa, Students and University of Louisville - Louis D. Brandeis School of Law Date Posted: 11 Aug 2021 [10th last week]	73
9.	Masterpiece or Mess: The Mosaic Theory of the Fourth Amendment Post-Carpenter Robert Fairbanks University of California, Berkeley, School of Law, Date Posted: 18 Aug 2021 [new to top ten]	56
10.	Rehabilitating Statistical Evidence Lewis Ross London School of Economics & Political Science (LSE) - London School of Economics Date Posted: 15 Jun 2021 [new to top ten]	55

"White House Offers Clemency for Drug Offenders on Home Confinement, but Advocates Say Plan Will Still Send Thousands Back to Prison"

From C.J. CIARAMELLA at Reason, via NACDL's news-of-interest:

President Joe Biden's White House has started sending out clemency applications to thousands of federal drug offenders currently on home confinement due to the COVID-19 pandemic, Politico reported on Monday, but criminal justice advocates say the plan would still send thousands of offenders back to prison after they started putting their lives together again.

The federal Bureau of Prisons (BOP) released more than 20,000 inmates on home confinement last year under pandemic legislation called the CARES Act, but since then, it's been an open question of if and when they would have to return to prison after the pandemic ends. The New York Times first reported last month that the Biden administration, under pressure from advocates, was considering offering clemency to nonviolent federal drug offenders released to home confinement with four years or less remaining on their sentences.

Steele on Alibi Defenses

Lisa Steele has posted Investigating and Presenting an Alibi Defense on SSRN. Here is the abstact:

The New Jersey Supreme Court has said that “few defenses have greater potential for creating reasonable doubt as to a defendant's guilt in the minds of the [jurors than an alibi].” But is alibi a powerful defense, or a risky gambit with a high likelihood of backfiring?

In two-thirds of exoneration cases, the innocent defendant offered an alibi defense at trial which was rejected by the fact-finder. This article talks about alibi defenses from psychological research into the defendant's autobiographical memory and investigator tactics in the interrogation room, to alibi witnesses' memory and susceptibility to post-event information, to expected cross-examination and other courtroom issues.

"Mayor Lightfoot’s plan to use asset forfeiture to curb violence looks like an empty move"

From the Chicago Sun-Times, via NACDL's news-of-interest:

Mayor Lori Lightfoot’s new plan to seize the assets of gang members looks like a disturbing indication that her administration is in over its head when it comes to solving Chicago’s violent crime problem.

Last week, the mayor proposed an ordinance to allow authorities to use asset forfeiture laws to sue gang members and snatch up their valuables.

. . . . 

But asset seizures strike us as an outdated approach that might’ve worked in the 1980s against East Coast organized crime bosses and South Florida drug dealers, but would be virtually useless in curbing the violence on the streets of Chicago today — especially given that the violence is concentrated in poor neighborhoods where assets are few to begin with.

Carroll on COVID-19 Relief and the Ordinary Inmate

Jenny E. Carroll (University of Alabama - School of Law) has posted COVID-19 Relief and the Ordinary Inmate (Ohio State Journal of Criminal Law, Vol. 18, No. 2, 2021) on SSRN. Here is the abstract:

 

As scholars and advocates have lamented the deficiencies of remedies pre- and post-conviction for the extraordinary, the “ordinary” are not saddled with slow and deficient remedies -- they have none. This Essay explores this absence of such relief for those unable to make an extraordinary claim during the COVID-19 public health crisis of 2020. For the ordinary men, women, and children held in custody in 2020 and beyond, pretrial detention and sentencing laws make no exception in the face of a potentially fatal contagion or the public health crisis it creates. Yet, the pandemic highlights the reality that systematic flaws -- carceral systems that permit mass infection within and outside their walls and release triggers premised on extraordinary circumstances or conditions -- are a sort of roulette of disaster for ordinary people in custody who lack access to pre- and post-conviction relief. As problematic as these flaws are, they also represent an opportunity to reconsider the priorities that animate such relief and to question (or reimagine) systems that rebalance those priorities not just around the lives of the extraordinary, but around the lives of the ordinary.

"Garbage In, Gospel Out: How Data-Driven Policing Technologies Entrench Historic Racism and 'Tech-Wash' Bias in the Criminal Legal System"

NACDL has posted the report here. From the summary:

This NACDL Predicative Policing Task Force Report (1) calls attention to the rapid development and deployment of data-driven policing; (2) situates data-driven policing within the racialized historical context of policing and the criminal legal system; (3) makes actionable recommendations that respond to the reality, enormity, and impact of data-driven policing; and (4) suggests strategies for defense lawyers in places where data-driven policing technology is employed.

"Robbery Poses Legal Test for Police Use of Google Location Data"

From Bloomberg, via FourthAmendment.com:

Chatrie’s lawyers argue that the warrant used to collect Google location data is unconstitutional because law enforcement cast a broad net to find a suspect, capturing other people’s information in the process.

“Geofence warrants have drawn criticism because they can capture and reveal considerable amounts of information about people who simply happen to be in the area, but have no actual connection to the subject of the warrant,” said John Seiver, who litigates privacy cases for Davis Wright Tremaine LLP.

Courts typically have accepted that collecting unrelated data is “inevitable,” Seiver said, so it comes down to whether the warrant’s search area is reasonably drawn to boost the chances of finding evidence.

Sarat & Kyle on The Death Penalty in Dark Times

Austin Sarat and Ryan Kyle (Amherst College and Amherst College) have posted The Death Penalty in Dark Times: What Crises Do (or Do Not Do) to Capital Punishment on SSRN. Here is the abstract:

 

The COVID-19 pandemic temporarily stopped executions in the United States and played a part in a record low number of death sentences handed down in 2020. While many newspapers reported on the pandemic-related disruption of individual executions and court proceedings, little attention has been given to understanding whether other crises in American history have similarly disrupted the death penalty. This paper examines execution data from several major crises in American history – wars, economic downturns, and pandemics – to assess whether COVID-19’s disruption of the American death penalty represents an anomaly among pandemics and other crises. As we will show, the death penalty has shown remarkable resiliency. Through all manner of national disruptions, with the exception of the first months of the COVID-19 pandemic, America’s execution machinery has kept on running. This fact is one indication of this nation’s attachment to capital punishment.

"Texas governor signs controversial bail reform bill"

From Courthouse News Service, via NACDL's news-of-interest:

Named after a Texas state trooper shot dead during a traffic stop, Governor Greg Abbott signed a bill Monday to block those accused of violent crimes from being released from jail without paying bail. Opponents say it discriminates against poor people.

Abbott named bail reform as a priority for the Texas Legislature this year and signed the Damon Allen Act at an event Monday in Houston where Allen’s widow, Kasey Allen, said it will help keep violent criminals like the one who killed him on Thanksgiving Day 2017 off the streets.

"Italy data protection authority asks Facebook to clarify privacy implications of smart glasses"

From Jurist. In part:

Italy’s administrative authority on personal data protection, Garante Privacy, on Friday asked its Irish counterpart, the Irish Data Protection Commission (Irish DPC), to solicit answers from Facebook to a series of questions on the privacy implications of its new smart glasses before the company markets them on the Italian market.

Facebook’s smart glasses, called Ray-Ban Stories, have been developed in partnership with Ray-Ban maker EssilorLuxottica. They allow users to listen to music, take calls, or capture photos and short videos, which can then be shared across services such as Facebook, Instagram, WhatsApp, Messenger, Twitter, TikTok, Snapchat, etc.

Slobogin on Suspectless Searches

Christopher Slobogin (Vanderbilt University - Law School) has posted Suspectless Searches on SSRN. Here is the abstract:

 

Traditional searches of persons, houses, papers or effects usually begin with an identified suspect. But today police are increasingly using technology to engage in what might be called suspectless searches—searches that try to identify a perpetrator—using techniques like geofencing, TiVo droning, DNA matching, automated license plate readers, and facial recognition technology. The Fourth Amendment should govern use of such techniques. But application of its reasonableness requirement to suspectless searches should not always require a warrant or probable cause, given the minimal intrusion often associated with them. Instead, the focus in these types of cases should be how to circumscribe the scope of the search consistent with the Fourth Amendment’s particularity mandate and ensure that normal Fourth Amendment constraints are followed when police act on the information they obtain from the suspectless search.

Hamilton on Platform-Enabled Crimes

Rebecca J. Hamilton (American University - Washington College of Law) has posted Platform-Enabled Crimes on SSRN. Here is the abstract:

 

Online intermediaries are omnipresent. Each day, across the globe, the corporations that run these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes; yet online intermediaries are almost never held to account for their complicity in the resulting harms.

This Article introduces the term and concept of platform-enabled crimes into the legal literature to draw attention to way that the ordinary business activities of online intermediaries can enable the commission of crime. It then singles out a subset of platform-enabled crimes—those where a social media company has facilitated international crimes—for the purpose of understanding and addressing the accountability gap associated with them.

Continue reading

Berry on Capital Felony Merger

William W. Berry (University of Mississippi School of Law) has posted Capital Felony Merger (Journal of Criminal Law and Criminology, Vol. 111, No. 3, 2021) on SSRN. Here is the abstract:

 

Capital felony murder statutes continue to enable states to sentence criminal defendants to death. These are often individuals who possessed no intent to kill and, in some cases, did not kill. These statutes remain constitutionally dubious under the basic principles of the Eighth Amendment, but the United States Supreme Court’s evolving standards of decency doctrine has proved an ineffective tool to remedy these injustices.

This Article proposes a novel doctrinal approach by which the Court could promote more consistent sentencing outcomes in felony murder cases. Specifically, the Article argues for the adoption of a constitutional felony merger doctrine that “merges” the crimes of felony murder and first-degree murder in capital cases. Just as felony murder cannot serve as a tool by which prosecutors can convert second-degree assault killings into first-degree murders, felony murder should also not serve as a tool to convert noncapital crimes into capital ones.

Continue reading

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse Paul H. Robinson and Lindsay Holcomb University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct Date Posted: 17 Aug 2021	88
2.	Black Lives Matter: Trayvon Martin, the Abolition of Juvenile Justice and #BlackYouthMatter Nancy E. Dowd University of Florida Levin College of Law Date Posted: 29 Jul 2021 [6th last week]	60
3.	Carceral Progressivism and Animal Victims Benjamin Levin University of Colorado Law School Date Posted: 01 Sep 2021 [2nd last week]	56
4.	Should be Marijuana Legalized in India? Mohd Rameez Raza Faculty of Law, Integral University Date Posted: 16 Aug 2021 [new to top ten]	49
5.	Amos Akerman: Grant's Attorney General Who Broke the Back of the Ku Klux Klan Allan A. Ryan Harvard University, Division of Continuing Education Date Posted: 27 Jul 2021 [3rd last week]	47
6.	Restorative Retributivism Brian Murray Seton Hall Law School Date Posted: 12 Aug 2021 [4th last week]	46
7.	Criminalizing Migration César Cuauhtémoc García Hernández Ohio State University College of Law Date Posted: 01 Jul 2021 [new to top ten]	41
8.	Editor's Introduction: New Topics in Sentencing Theory Jacob Bronsther Michigan State University - College of Law Date Posted: 11 Aug 2021 [5th last week]	41
9.	Permanent Name Suppression for a Child Convicted of Homicide Nessa Lynch Victoria University of Wellington - Faculty of Law Date Posted: 19 May 2020 [7th last week]	34
10.	The Transnational Cybercrime Extortion Landscape and the Pandemic: Changes in Ransomware Offender Tactics, Attack Scalability and the Organisation of Offending David S. Wall Centre for Criminal Justice Studies, School of Law, University of Leeds Date Posted: 31 Aug 2021 [new to top ten]

 

 

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Inside the Black Box of Prosecutor Discretion Megan S. Wright, Shima Baradaran Baughman and Christopher T. Robertson The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University Date Posted: 28 Jul 2021 [3rd last week]	325
2.	The Trump Executions Lee Kovarsky University of Texas School of Law Date Posted: 27 Jul 2021 [1st last week]	294
3.	Truth, Lies and The Paradox of Plea Bargaining Thea Johnson Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 29 Jun 2021 [2nd last week]	258
4.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021 [new to top ten]	223
5.	Content Moderation as Surveillance Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 30 Jun 2021 [4th last week]	217
6.	Policing Suspicion: Qualified Immunity and 'Clearly Established' Standards of Proof Seth W. Stoughton, Kyle McLean, Justin Nix and Geoffrey Alpert University of South Carolina School of Law, Clemson University, University of Nebraska Omaha and University of South Carolina Date Posted: 09 Jul 2021 [new to top ten]	85
7.	Sex Offender Registration and Community Notification Laws: An Empirical Evaluation Wayne A. Logan and J.J. Prescott Florida State University - College of Law and University of Michigan Law School Date Posted: 30 Jun 2021 [new to top ten]	81
8.	Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 25 Jun 2021 [5th last week]	76
9.	Transparency's AI Problem Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 08 Jul 2021 [6th last week]	74
10.	Challenging Jurors' Racism Monnica Williams, Sonya Faber, Dana Strauss, Sophia Gran-Ruaz, Amy Bartlett, Maria Macaluso, Joseph La Torre and Ariana R. Levinson University of Ottawa - Department of Psychology, Angelini Pharma, University of Ottawa, Students, University of Ottawa, Students, University of Ottawa, Students, University of Louisville, Louis D. Brandeis School of Law, Students, University of Ottawa, Students and University of Louisville - Louis D. Brandeis School of Law Date Posted: 11 Aug 2021 [7th last week]	69

Coker on Restorative Responses to Intimate Partner Violence

Donna Coker (University of Miami School of Law) has posted an abstract of Restorative Responses to Intimate Partner Violence (in COMPARATIVE DISPUTE RESOLUTION 46 (Maria Federica Moscati, Michael Palmer, & Marian Roberts eds. 2020), Edward Elgar Publishing) on SSRN. Here is the abstract:

 

Intimate partner violence (IPV) cases are routinely seen in restorative justice (RJ) programs in a number of countries. I provide a comparative analysis of these programs as well as programs in the U.S. (I am unaware of any other comparable international comparison of RJ IPV programs.) Though RJ use in IPV cases remains controversial, feminist interest in the potential for RJ has increased significantly. This interest is prompted, in part, by the development of specialized programs equipped to address IPV. These programs include substantial preparation, safety planning with survivors, and the provision of resources for both the person who was harmed and the person who caused harm. In addition, programs in countries with an adversarial legal system must ensure that statements made in the RJ process are not admissible in future criminal or civil actions. U.S. feminist interest in restorative responses is also prompted by a growing disenchantment with the dominant crime-centered response to IPV and recognition of the ways in which feminist-inspired gender violence policy has contributed to mass incarceration. The collateral consequences of even a misdemeanor domestic violence conviction are substantial and involvement with the criminal system threatens the wellbeing of survivors, especially those who are members of racially subordinated communities. A restorative approach allows survivors a meaningful voice, disrupts social supports for IPV, and avoids simplistic “crime logic” reasoning whereby an understanding of multiple determinants of behavior is replaced with a simplistic understanding of moral agency.