CrimProf Blog

Crump on Electronic Monitoring of Youth

Catherine Crump (UC Berkeley, School of Law) has posted Tracking the Trackers: An Examination of Electronic Monitoring of Youth in Practice (UC Davis Law Review, Vol. 53, No. 2, 2019) on SSRN. Here is the abstract:

 

Although vast numbers of young people in the juvenile justice system are subject to electronic monitoring, its rise has occurred with little reflection or evaluation by anyone, including the probation departments that implement it. As a result, we know surprisingly little about electronic monitoring’s practical effects. This Article fills that gap by presenting three findings about juvenile electronic monitoring, grounded in the results of hundreds of public records act requests I filed with probation departments across California. First, while many have hailed electronic monitoring as a potential alternative to incarceration, available evidence suggests it is instead “net widening,” expanding control over young people who would otherwise have received less burdensome terms of release.

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Bolitho on Restorative Justice and Memory Reconsolidation in Victims

Jane Bolitho (University of New South Wales (UNSW) - School of Social Science and Policy) has posted Inside the Restorative Justice Black Box: The Role of Memory Reconsolidation in Transforming the Emotional Impact of Violent Crime on Victims on SSRN. Here is the abstract:

 

This paper is concerned with why and how restorative justice (RJ) works to alleviate the emotional effects of crime on victims. It posits a new explanation for the ‘aha’ moment; the turning point seen in some, though not all, restorative justice conferences where long standing, negative emotions and beliefs that have persistently dogged a victim since the crime event, affecting their ability to enjoy the same everyday activities as in their pre-crime daily life, are seemingly eliminated. Focusing on victim experiences an in-depth analysis of 20 cases collected as part of empirical study into a post-sentencing RJ practice after serious crime shows how a typical restorative process can mimic the conditions needed for ‘memory reconsolidation’, a powerful and adaptive neurobiological mechanism that rewrites emotional memories. The findings suggest that the process of MR is a unique tool in the RJ ‘black box’. While the use of RJ within western criminal justice systems is routine for juvenile offenders following minor crimes, greater attention should be paid to victim focused models in the aftermath of crime experienced traumatically; these include post-sentencing practices.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Opposite of Punishment: Imagining a Path to Public Redemption Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 19 Jun 2019	104
2.	Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States Amy J. Cohen Ohio State University (OSU) - Michael E. Moritz College of Law Date Posted: 17 May 2019	85
3.	Neuroscience, Justice and the 'Mental Causation' Fallacy John A. Humbach Pace University School of Law Date Posted: 17 May 2019	82
4.	An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault Elaine Craig Dalhousie University - Schulich School of Law Date Posted: 20 Jun 2019	66
5.	Liability of Sister Companies and Subsidiaries in European Competition Law Christian Kersting Heinrich Heine University Düsseldorf - Faculty of Law Date Posted: 03 Jun 2019	57
6.	IQ, Culpability, and the Criminal Law’s Gray Area: Why the Rationale for Reducing the Culpability of Juveniles and Intellectually Disabled Adults Should Apply to Low-IQ Adults Adam Lamparello Independent Date Posted: 30 May 2019 [7th last week]	54
7.	Criminal Clear Statement Rules Carissa Byrne Hessick and Joseph Edward Kennedy University of North Carolina School of Law and University of North Carolina Date Posted: 24 May 2019 [6th last week]	53
8.	Democracy, Bureaucracy and Criminal Justice Reform Lauren M. Ouziel Temple University - James E. Beasley School of Law Date Posted: 06 Jun 2019	45
9.	Deliberate Ignorance and the Law Eyal Zamir and Roi Yair Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem Date Posted: 25 Jun 2019 [10th last week]	43
10.	Naira Marley vs. Economic and Financial Crimes Commission: the Extent of Freedom of Expression in Nigeria, and the EFCC’s Inefficiencies—A Legal Opinion. Gbenga Odugbemi Babcock University - School of Law and Security StudiesUniversity of Edinburgh - School of Law Date Posted: 05 Jun 2019 [9th last week]	40

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance Roseanna Sommers and Vanessa K. Bohns University of Chicago - Law School and Cornell University Date Posted: 23 May 2019	528
2.	Beyond Bias: Re-Imagining the Terms of ‘Ethical AI’ in Criminal Law Chelsea Barabas MIT Media Lab Date Posted: 23 May 2019	191
3.	When Plea Bargaining Became Normal William Ortman Wayne State University School of Law Date Posted: 29 May 2019	160
4.	Plea-Bargaining: Socio-Legal Impacts on the Criminal Justice System of Bangladesh Md. Pizuar Hossain and Tureen Afroz East West University and East West University Date Posted: 04 Jun 2019	116
5.	The Opposite of Punishment: Imagining a Path to Public Redemption Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 19 Jun 2019	104
6.	Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States Amy J. Cohen Ohio State University (OSU) - Michael E. Moritz College of Law Date Posted: 17 May 2019	85
7.	Incorporating Collateral Consequences into Criminal Procedure Paul T. Crane University of Richmond School of Law Date Posted: 07 May 2019	79
8.	Big Data Prosecution and Brady Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 07 Jun 2019	79
9.	The Haves of Procedure Ion Meyn University of Wisconsin Law School Date Posted: 22 May 2019 [10th last week]	67
10.	Confrontation After Scalia and Kennedy Michael S. Pardo University of Alabama School of Law Date Posted: 17 May 2019 [9th last week]	66

Podgor on Cryptocurrencies and Securities Fraud

Ellen S. Podgor (Stetson University College of Law) has posted Cryptocurrencies and Securities Fraud: In Need of Legal Guidance on SSRN. Here is the abstract:

 

The specificity of statutes is important when the statute provides for criminal penalties. This Essay examines a cryptocurrency fraud prosecution, looking at the issue of whether cryptocurrency is included in securities fraud statutes. It also looks at proposed legislation that would omit cryptocurrency as a security, but then calls for enhanced regulation and tax relief. Additional clarification is needed to ascertain whether cryptocurrency fraud can be prosecuted under current securities fraud statutes. This Essay questions such prosecutions when the location of key definitions rest within agency regulations. Although specificity may not be needed to account for every imaginable type of fraud, when it comes to cryptocurrencies, Congress needs to provide more direction.

Rossmo & Pollock on Systemic Causes of Wrongful Convictions

Kim Rossmo and Joycelyn Pollock (Texas State University and Texas State University) have posted Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective (Northeastern University Law Review, Vol. 11, No. 2, 2019) on SSRN. Here is the abstract:

 

Wrongful convictions are a form of criminal investigative failure. Such failures are sentinel events that signal underlying structural problems within a weak system environment. Similar to transportation or medical accidents, they are often the result of multiple and co-occurring causes. However, unlike the response to an airplane crash, the criminal justice system typically makes little effort to understand what went wrong. These failures tend to be ignored and systemic reviews are rare. As a consequence, important necessary procedural changes and policy improvements may not occur. In this article, we discuss a National Institute of Justice-funded research project that was designed to develop a more comprehensive understanding of how—as opposed to why— such failures occur. We deconstructed 50 wrongful convictions and other criminal investigative failures in order to identify the major causal factors, their characteristics and interrelationships, and the systemic nature of the overall failure. We focus on the central role played by confirmation bias and other thinking errors.

Roberts on Memory

Andrew J. Roberts (Melbourne Law School) has posted The Frailties of Human Memory the Accused's Right to Accurate Procedures on SSRN. Here is the abstract:

 

It is often claimed that the criminal justice system has not taken sufficient account of the findings of experimental studies that have revealed much about the limitations and vulnerabilities of human memory and cognition. Indeed some have suggested that those responsible for the administration of justice are generally disinterested in what psychologists have to say about the nature of memory and its frailties, and unwilling to consider the adequacy of legal rules and practices in light of what is known about these matters.

Croy on Prosecutorial Ethics During Plea Bargaining

Skylar Croy has posted When 'Ministers of Justice' Violate Rules of Professional Conduct During Plea Bargaining: Contractual Consequences (Georgetown Journal of Legal Ethics, Forthcoming) on SSRN. Here is the abstract:

This Article argues that when a prosecutor — a “ministers of justice” — violates a rule of professional conduct during plea-bargaining, the defendant can void those portions of the agreement that stand in contravention with the violated rule. Violating a rule of professional conduct is almost always against public policy, and plea agreements, like all contracts, can be voided for violations of public policy.

As an anecdote, this Article primarily examines waivers of the right to collateral attack.

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Bedi et al. on Managerial Proclivities to Financially Misreport

Suneal Bedi, Catherine M. Schrand and Eugene F. Soltes (Indiana University - Kelley School of Business, University of Pennsylvania - Accounting Department and Harvard Business School) have posted Managerial Proclivities to Financially Misreport on SSRN. Here is the abstract:

 

We use an experimental survey that includes five financial (mis)reporting scenarios to investigate why managers consider engaging in financial misreporting. In our sample of over 400 experienced managers, we find nearly 60% of managers stating they would likely misreport in at least one of the scenarios. We find that morality and culture — as expressed by both social and professional norms — are the most significant drivers that either enable or inhibit a manager’s stated willingness to misreport. We find little consistent evidence that greater legal sanctions reduce managers’ proclivities to misreport. To the extent we find significant results for managerial attributes and sanctions, they occur in the scenarios that describe an extremely acceptable action or extremely unacceptable action, as assessed in a pretest. Our analysis highlights some of the challenges in designing effective regulatory and organizational strategies to prevent malfeasance.

Biederman on Forensic Science Evidence and Expert Witness Testimony

Alex Biedermann (University of Lausanne) has posted Book Review: Roberts, Paul and Stockdale, Michael (eds), Forensic Science Evidence and Expert Witness Testimony: Reliability Through Reform? (Cheltenham: Edward Elgar Publishing, 2018) on SSRN. Here is the abstract:

 

This volume emerges from the collaboration of two Professors Paul Roberts (Professor of Criminal Jurisprudence, Faculty of Social Sciences, University of Nottingham, UK) and Michael Stockdale (Head of Law and Director of the Northumbria Centre for Evidence and Criminal Justice Studies, Northumbria University, Newcastle, UK). They foster exchanges through the Northumbria Centre for Evidence & Criminal Justice Studies (NCECJS), which is part of Northumbria Law School. Jointly, the Editors gathered a global group of 18 contributors in total (from the UK, Ireland, Switzerland, Malaysia, Australia, Canada and the US). They are all recognised experts in their fields which include the law, forensic science, regulation and policy-making. The volume features 13 chapters that, individually and collectively, demonstrate a rigorously interdisciplinary and international perspective.

Doll & Walby on Institutional Ethnography

Agnieszka Doll and Kevin Walby (McGill University - Faculty of Law and University of Winnipeg) have posted Institutional Ethnography as a Method of Inquiry for Criminal Justice and Socio-Legal Studies (IJCJ&SD 2019 8(1): 147-160) on SSRN. Here is the abstract:

 

Institutional ethnography (IE) is a method of inquiry created by Canadian feminist sociologist Dorothy E. Smith to examine how sequences of texts coordinate forms of organisation. Here we explain how to use IE, and why scholars in criminal justice and socio-legal studies should use it in their research. We focus on IE’s analysis of texts and intertextual hierarchy, as well as Smith’s understanding of mapping as a methodological technique; the latter entails explaining how IE’s approach to mapping differs from other social science approaches. We also argue that IE’s terms and techniques can help examine the textual work undertaken in criminal justice and legal organisations, and reveal how people are governed and ruled by these organisational processes. In the discussion, we summarise how IE can productively contribute to criminal justice and socio-legal studies in the twenty-first century.

Hathaway et al. on Aiding and Abetting in International Criminal Law

Oona A. Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy and Alyssa Yamamoto (Yale University - Law School, Yale University - Law School, Yale University, Law School, Students, Yale University, Law School, Students and Yale University - Law School) have posted Aiding and Abetting in International Criminal Law (Cornell Law Review, Vol. 104, No. 6, 2019) on SSRN. Here is the abstract:

 

To achieve justice for violations of international law such as genocide, torture, crimes against humanity, and war crimes, it is essential to address complicity for international crimes. Beginning in the 1990s, there was a proliferation of international and hybrid criminal tribunals, which sought to hold perpetrators of these crimes accountable and in turn, generated an explosion of international criminal law jurisprudence. Nonetheless, the contours of aiding and abetting liability in international criminal law remain contested. Courts — both domestic and international — have long struggled to identify the proper legal standard for holding actors liable for aiding and abetting even the most serious violations of international law. That confusion has, in turn, produced inconsistent decisions. In the United States, for example, it has resulted in a circuit split, leading many to predict the issue will only be resolved by the U.S. Supreme Court.

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Jones & McGregor on Capital Jurors

Elizabeth N. Jones and Sydney McGregor (Western State College of Law and affiliation not provided to SSRN) have posted Thank You for Your Service: Acknowledging our Inadequate Treatment of Jurors in California's Death Penalty Debate (Criminal Law Journal, California Lawyers Association, Spring 2019, Vol. 19, Issue 2) on SSRN. Here is the abstract:

 

California's justice system has a duty to address the life-altering effects that a capital trial has on its jurors. The state must do more than merely thank its civic-minded citizens for their service and then leave them to process the horrors presented in court alone. As California joins other states with similar gubernatorial death penalty moratoria, consideration must be given to this integral and often overlooked group within the capital punishment process: the jurors.

Prendergast on Vagueness

David Prendergast(School of Law, Trinity College Dublin) has posted Constitutional Control of Vague Criminal Law (2017 DULJ) on SSRN. Here is the abstract:

 

This article concerns the Irish constitutional legality requirement that criminal law be certain and not vague. It does three main things. First, it explains the certainty requirement in terms of fair notice and fair adjudication. Second, it argues that assessing the constitutionality of vagueness in criminal law is typically about the location and effect of the vagueness rather than its magnitude. Third, the article suggests an elemental certainty test for identifying cases of unconstitutional vagueness.

Hersch & Meyers on Conviction, Gender, and Employment

Joni Hersch and Erin E. Meyers (Vanderbilt University - Law School and Vanderbilt University, Law School, Law and Economics, Students) have posted The Gendered Burdens of Conviction and Collateral Consequences on Employment (Journal of Legislation, Forthcoming) on SSRN. Here is the abstract:

 

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living. This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men. This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record. In addition, women have access to far fewer vocational programs while incarcerated. Further exacerbating this burden is that women involved in the criminal justice system tend to be a more vulnerable population and are more likely to be responsible for children than their male counterparts, making legal restrictions on access to public assistance that would support employment more burdensome for women. We propose programs and policies that may ameliorate these gendered income burdens of criminal conviction, including reforms to occupational licensing, improved access to public assistance, reforms to prison labor opportunities, improvements in labor market information sharing, and expanded employer liability protection.

Purvis & Blanco on Police Sexual Violence

Dara E. Purvis and Melissa Blanco (Pennsylvania State University, Penn State Law and Pennsylvania State University, Penn State Law, Students) have posted Police Sexual Violence: Police Brutality, #MeToo, and Masculinities (California Law Review, Forthcoming) on SSRN. Here is the abstract:

 

A woman alleges that she was raped by a police officer while in police custody. The police officer acknowledges that he had sexual intercourse with the woman, but argues that she consented to the interaction. Despite the obvious power imbalance and troubling context of the sexual activity, in a majority of U.S. states, if the police officer convinces even one member of a jury that their activity was consensual, it is not illegal. Consent is an affirmative defense to allegations of sexual assault— even when the alleged assault occurs while the victim is in the custody of the perpetrator. 

Allegations of sexual assault committed by police officers while on duty, known as police sexual violence (PSV), are shockingly prevalent and surprisingly underanalyzed.

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Howell & Bustamante on The Bronx 120

Babe Howell and Priscilla Bustamante (CUNY School of Law and CUNY - The Graduate Center) have posted Report on the Bronx 120 Mass 'Gang' Prosecution (Bronx 120 Report, April 2019) on SSRN. Here is the abstract:

 

In recent years, takedowns of gangs and crews in New York City have led to mass prosecutions of multiple defendants for conspiracy and RICO (Racketeering Influenced Corrupt Organization Act) conspiracy charges. While the takedowns are generally accompanied by intensive media coverage, information about the charges, process, and allegations against individuals caught up in these takedowns is not readily accessible.

This report looks into the court records of the largest of the mass gang prosecutions — the takedown of the Bronx 120 in April of 2016.

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Searston & Chin on Black Box Expertise

Rachel Searston and Jason Chin (Independent and Sydney Law School) have posted The Legal and Scientific Challenge of Black Box Expertise (University of Queensland Law Journal (Forthcoming)) on SSRN. Here is the abstract:

 

Legal commentators widely agree that forensic examiners should articulate the reasons for their opinions. However, findings from cognitive science strongly suggest that people have little insight into the information they rely on to make decisions. And as individuals gain expertise, they rely more on cognitive shortcuts that are not directly accessible through introspection. That is to say, the expert’s mind is a black box – both to the expert and to the trier of fact. This article focuses on black box expertise in the context of forensic examiners who interpret visual pattern evidence (e.g., fingerprints). The authors review black box expertise through the lens of cognitive scientific research. They then suggest the black box nature of this expertise strains common law admissibility rules and trial safeguards.

Rankin on Punishing Homelessness

Sara Rankin (Seattle University School of Law) has posted Punishing Homelessness (22 New Criminal Law Review 1, 99–135 (2019)) on SSRN. Here is the abstract:

 

Homelessness is punishing to those who experience it, not just from the inherent and protracted trauma of living exposed on the street, but also due to widespread and pervasive laws that punish people for being homeless. People experiencing homelessness, particularly chronic homelessness, often lack reasonable alternatives to living in public. Yet cities throughout the country are increasingly enacting and enforcing laws that punish the conduct of necessary, life-sustaining activities in public, even when many people have no other option. These laws are frequently challenged in court and often struck down as unconstitutional. But legally sound, cost-effective, and non-punitive alternatives to ending chronic homelessness exist. This article exposes some of the problems with criminalization laws, not only for people experiencing homelessness, but also for the broader community.

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Levy on Criminal Responsibility

Ken Levy (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Criminal Responsibility (SAGE Encyclopedia of Criminal Psychology (Sage Publishing, 2019), pp. 269-72) on SSRN. Here is the abstract:

 

This invited entry offers a brief overview of criminal responsibility. 

The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification.

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