CrimProf Blog

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

Saturday, December 4, 2021

Next week's criminal law/procedure arguments

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

Tuesday

Wednesday

  • Shinn v. Ramirez: Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

December 4, 2021 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

How to be a Better Plea Bargainer

Texas A&M University School of Law and Marquette University - Law School
453
2.

The Broken Fourth Amendment Oath

University of Arkansas School of Law
267
3.

Buying Data and the Fourth Amendment

University of California, Berkeley School of Law
267
4.

Congressional Surveillance

Georgetown University Law Center
192
5.

The Bailable v. Non-Bailable Classification in Indian Criminal Procedure

Delhi High Court
137
6.

Grounding Legal Proof

Georgetown University Law Center
98
7.

Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System

John Jay College - CUNY Graduate Center and John Jay College - CUNY Graduate Center
73
8.

An Experimental Exploration of Reasonable Doubt

Baylor University - Department of Economics, Baylor University - Hankamer School of Business, Baylor University, Baylor University Department of Economics, Whitman College and Utah State University - Department of Economics and Finance
65
9.

The Danger of Rigged Algorithms: Evidence from Immigration Detention Decisions

Stanford University, Department of Political Science
64
10.

Surveying Surveillance: A National Study of Police Department Surveillance Technologies

Northwestern University, Pritzker School of Law and Northwestern University - Pritzker School of Law
48

December 4, 2021 | Permalink | Comments (0)

Friday, December 3, 2021

Sow on Race and Policing

Marissa Jackson Sow (St. John's University) has posted Protect and Serve (California Law Review, Forthcoming) on SSRN. Here is the abstract:
 
There exists a substantial body of literature on racism in policing, police brutality, police reform, and even police abolition, as well as the militarization of the police, and the relationship of the police to the State and its citizenry. With respect to the relationship between the police and Black people in the United States, theories abound and most of these theories rest upon the basic assumption—undergirded by constitutional, civil rights, and human rights law—that Black people in the United States are entitled to due process and equal protection when they are in contact with the police or other law enforcement officers.

This Article uses the theory of whiteness as contract and advances a critical theory of contract law to challenge that basic assumption and instead advance the claim that the mandate that police “protect and serve” does not apply to Black people in actuality, notwithstanding the provisions of constitutional and statutory law, because Black people are the objects of racial contracting rather than participants therein. The police are charged with protecting the racial contract and serving the contract’s signatories; accordingly, they enforce the contract’s terms, requiring them to specifically target Black people for surveillance, harassment, deprivation, and even death, lest the contract be subject to breach or other interference.

December 3, 2021 | Permalink | Comments (0)

"Civil groups urge EU to amend AI law for fundamental rights protection"

From Jurist:

A consortium of 114 civil society organisations Tuesday asked the European Union’s (EU) Parliament, Council and member states to undertake major revisions to the proposed Artificial Intelligence Act unveiled in April this year.

In their letter, the rights groups noted that the regulatory vacuum in the development and use of AI systems is increasingly threatening human rights and the EU’s democratic values. Because AI systems are incorporated in all spheres of public life, including healthcare, social security and policing the groups argued that the new AI legislation must address the “structural, societal, political and economic impacts” of the technology.

December 3, 2021 | Permalink | Comments (0)

Thursday, December 2, 2021

Li on Cybercrime and Deterrence

Xingan Li (Tallinn University (TLU)) has posted Cybercrime and Deterrence on SSRN. Here is the abstract:
 
Society is undergoing automization, digitalization, spread of information, and networking, brought about by the broad adoption of information and communications technology (ICT). Information systems create not only advantages, convenience and efficiency, but also disadvantages, challenges and threats. Legislation is usually not prompt nor adequate enough to address technology-oriented social problems. The potential abuse of information systems has long been uncontrollable. Cybercrime has a deeply negative influence on the development of an information society.

Considering the routine-activity theory and the social disorganization theory, the dissertation explores the conceived challenges created by the development of an information technology confronting the traditional social-control system.

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December 2, 2021 | Permalink | Comments (0)

Funk on Self Defense

T. Markus Funk (University of Oxford; University of Colorado School of Law) has posted On the Law of Self-Defense (And Why Transparency About our Value-Judgments is the Missing Piece in Today's Justice Reform Debate) on SSRN. Here is the abstract:
 
A quick review of the mainstream media and recent scholarly output confirms that the exercise of self-preferential force to fend off a threat (and protect property) is squarely at the center of today’s simmering criminal justice reform debates. Real-world examples – largely tragic ones – triggering this discussion abound. Did Louisville police officers acted within their rights when their bullets hit medical worker Breonna Taylor? Was Travis McMichael acting outside of the legal (and moral) bounds when he, in the course of allegedly effecting a “citizen’s arrest” after a claimed trespass on a Georgia construction site, took unarmed Ahmaud Arbery’s life? Did Neighborhood Watch captain George Zimmerman have the legal right to shoot unarmed black teenager Trayvon Martin? Was Atlanta Police Officer Garrett Rolfe justified when he shot at the apparently fleeing Rayshard Brooks in an Atlanta parking lot? Should Markus Kaarma have been sentenced to 70 years’ imprisonment for shooting a German high school exchange student who engaging in a local tradition of “garage hopping”? And did retiree Joe Horn act lawfully when he used his shotgun to kill two men he suspected of burglarizing his neighbor’s home?

At the risk of noting the obvious, every one of these cases requires the criminal justice system to resolve challenging questions of law, fact, and morality.

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December 2, 2021 | Permalink | Comments (0)

Wednesday, December 1, 2021

Toomey on Scams and Seniors

James Toomey has posted Our Fraud Problem on SSRN. Here is the abstract:

We think of frauds and scams as primarily a problem for older adults. In the past few years, states and the federal government have passed a range of statutes designed to prevent seniors, as distinct from other adults, from scams—from more harshly punishing scams directed towards older adults to authorizing financial institutions to more closely monitor and rapidly freeze the accounts of older clients. This successful, popular, and bipartisan law reform movement has taken place without a thorough empirical understanding of whether in fact seniors are scammed more frequently than other age groups.

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December 1, 2021 | Permalink | Comments (0)

Perlin on Therapeutic Justice

 
In this paper, I consider the extent to which caselaw has – either explicitly or implicitly – incorporated the precepts of therapeutic jurisprudence (TJ), a school of legal thought that focuses on the law’s influence on emotional life and psychological well-being, and that asks us to assess the actual impact of the law on people’s lives. Two of the core tenets of TJ in practice are commitments to dignity and to compassion. I conclude ultimately that, with these principles as touchstones, TJ can be an effective tool – perhaps the most effective tool – in rooting out bias, limiting polarization, and supporting vulnerable persons in the legal process. But, this cannot and will not happen until more judges and practicing attorneys understand the potentially reformative (and transformative) role of TJ. My review of some relevant caselaw (both domestically and internationally) – a review that, to the best of my knowledge, has never previously been undertaken -- suggests that an incorporation of TJ principles is by no means a sure thing.

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December 1, 2021 | Permalink | Comments (0)

Tuesday, November 30, 2021

Ferguson on "Blue Data"

Andrew Guthrie Ferguson (American University Washington College of Law; University of the District of Columbia - David A. Clarke School of Law) has posted Chapter: "Blue Data" (Excerpt from "The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement") on SSRN. Here is the abstract:
 
This chapter is an excerpt from "The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement" which focuses on the concept of "Blue Data." The theory of blue data accountability is to turn the lens of surveillance away from the community and towards the police themselves. The chapter offers examples of how existing data-driven policing can enhance police accountability if used to focus on police misconduct and unconstitutional practices.

November 30, 2021 | Permalink | Comments (0)

Hong on The Parens Patriae Power

Esther Hong (Wake Forest University - School of Law) has posted A Reexamination of the Parens Patriae Power (Tennessee Law Review, Vol. 88, No. 277, 2021) on SSRN. Here is the abstract:
 
Juvenile law scholars are coalescing around the idea that the originating theory of the juvenile system—the theory of the state’s parens patriae power—is a largely obsolete relic of the past. This theory holds that when children commit offenses or crimes, the state as a super-parent should respond in a manner that cares, treats, and advances the best interest of the youth. Rather than live up to its ideals, however, these benevolent aims often masked abuse and limited minors’ constitutional rights. The new consensus in current juvenile law scholarship is that juvenile law policy and advocacy ought to rely on a developmental framework as the primary guide for state action.

This Article breaks from this emerging consensus.

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November 30, 2021 | Permalink | Comments (0)

Monday, November 29, 2021

Conklin on Binnall on Felons on Juries

Michael Conklin (Angelo State University - Business Law) has posted A Felon Among Us: Should Felons Be Allowed on Juries? (33 Regent U. L. Rev. ___ (forthcoming 2021)) on SSRN. Here is the abstract:
 
This is a review of James M. Binnall’s new book, Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury System. The federal government and a majority of states have complete bans on felons serving on juries. Binnall makes a strong case for ending these bans, supported by his own personal experience as a felon who was denied jury service and by his own novel, empirical research. However, in his zeal to advocate for this position, he overstates favorable evidence and ignores potential counterarguments. This Review examines the strengths and weaknesses of Binnall’s arguments and provides missing counterarguments against allowing felons to serve on juries.

November 29, 2021 | Permalink | Comments (0)

Gershowitz on Smart Cars and the Fourth Amendment

Adam M. Gershowitz (William & Mary Law School) has posted The Tesla Meets the Fourth Amendment on SSRN. Here is the abstract:
 
Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open to warrantless searches under other exceptions to the warrant requirement. This article argues that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, there is a strong argument that the police can warrantlessly extract data stored in a vehicle’s infotainment system.

When a driver uses Bluetooth to connect their cell phone to a vehicle, the driver transfers text messages, call history, contacts, emails, photos, videos, and even social media information from their phone to the car’s infotainment system. Police departments can then use a sophisticated data extraction device to download all of that cell phone data.

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November 29, 2021 | Permalink | Comments (0)

Berryessa on Public Support for "Second Chance" Mechanisms Regarding Drug Sentences

Colleen M. Berryessa(Rutgers, The State University of New Jersey - School of Criminal Justice) has posted Public Support for Using “Second Chance” Mechanisms to Reconsider Long-Term Prison Sentences for Drug Crimes ((2021) Federal Sentencing Reporter, 34(1), 71-79) on SSRN. Here is the abstract:
 
Using a national sample of U.S. adults (N = 371), this study experimentally examines (1) public support for the use of strategies that provide early release (i.e., “second chance” mechanisms) to individuals serving long-term prison sentences for drug crimes; and (2) how levels of support, and reasons for support, may vary depending on the type of drug-related offense. Results show moderate levels of support for using second chance mechanisms, both generally and in relation to specific strategies commonly available across jurisdictions, for a range of drug offenders. Yet participants showed significantly more support for using presumptive parole, elimination of parole revocations for technical violations, second-look sentencing, and compassionate release in the cases of those incarcerated long term for serious trafficking of marijuana, as compared to serious trafficking of serious drugs. Data also suggest that the public finds a range of factors—including the original sentence being extreme by international standards, extreme due to racially biased practices, out of step with current sentencing values/practices, too costly, and continuing to incarcerate someone unlikely to be a public safety threat—as at least moderately important to their support for the use of second chance mechanisms across drug crimes, and the importance of these factors to that support does not appear to differ significantly based on the type of drug offense. The importance of these results for policy making and utilization are discussed, as well
as implications for reducing our historical reliance on drug-related incarceration.

November 29, 2021 | Permalink | Comments (0)

Sunday, November 28, 2021

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

But We Haven't Got Corporate Criminal Law!

University of Iowa - College of Law and University of Michigan Ross School of Business
189
2.

Proximate Cause Untangled

New York University School of Law
136
3.

Why De Minimis is a Defence: A Reply to Professor Coughlan

Simon Fraser University
132
4.

Law of the Gun: Unrepresentative Cases and Distorted Doctrine

SMU Dedman School of Law
88
5.

Victims as Instruments

The Peter L. Zimroth Center on the Administration of Criminal Law, New York University School of Law
71
6.

Challenging Domestic Injustice Through International Human Rights Advocacy: Addressing Homelessness in The United States

National Law Center on Homelessness and Poverty, University of Miami - School of Law, University of Miami - School of Law, University of Miami - School of Law and University of Miami - School of Law
64
7.

Is there a Rational Basis for NH's War on Marijuana Anymore?

Rath, Young and Pignatelli and Independent
63
8.

Obstruction of Journalism

Georgetown University Law Center
60
9.

A Comparative Analysis of Cyberstalking Legislations in UK, Singapore and Sri Lanka

Sri Lanka Institute of Information Technology (SLIIT) - Law School and Sri Lanka Institute of Information Technology (SLIIT) - Law School
45
10.

Invisible Victims

University of Iowa - College of Law
44

November 28, 2021 | Permalink | Comments (0)

Saturday, November 27, 2021

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021

University of Utah - S.J. Quinney College of Law
615
2.

How to be a Better Plea Bargainer

Texas A&M University School of Law and Marquette University - Law School
437
3.

The Broken Fourth Amendment Oath

University of Arkansas School of Law
265
4.

Congressional Surveillance

Georgetown University Law Center
189
5.

The Living Rules of Evidence

University of Arkansas - School of Law
183
6.

Grounding Legal Proof

Georgetown University Law Center
89
7.

Reforming State Bail Reform

University of Utah - S.J. Quinney College of Law, University of Utah - S.J. Quinney College of Law and University of Utah, S.J. Quinney College of Law, Students
88
8.

Do Hobocops Dream of the Rule of Law?

Northern Illinois University - College of Law
83
9.

How Algorithms Expose the Law

Harvard Law School
82
10.

An Experimental Exploration of Reasonable Doubt

Baylor University - Department of Economics, Baylor University - Hankamer School of Business, Baylor University, Baylor University Department of Economics, Whitman College and Utah State University - Department of Economics and Finance
60

November 27, 2021 | Permalink | Comments (0)

Friday, November 26, 2021

Garrett on Models of Bail Reform

Brandon L. Garrett (Duke University School of Law) has posted Models of Bail Reform on SSRN. Here is the abstract:
 
Bail reform is an urgent topic in the United States and internationally, but what consists in reform, and how to accomplish reform goals remains contested. Jails are a modern epicenter of mass incarceration, with a stunning growth in American jail populations over the past four decades, despite declines in arrests and crime. Prior waves of bail reform gave us a system that still largely relied upon setting secured bonds, with up-front payments required, to determine who remains in jail while pending a criminal trial. Today, pre-trial policies and practices are contested and in flux. Recent bail reform legislation has inconsistently called for both local discretion and state-imposed rules, and restrictions on conditioning release on cash bail but also restrictions on release without cash bail. This Article seeks to shed light on key distinctions in bail reform approaches, by focusing on four models: (1) the procedural due process approach; (2) the risk assessment approach; (3) the categorical approach; (4) the community services approach; (5) an equal protection model; and (6) the use of alternatives to arrest. Each reflects a different normative agenda, targets different legal actors, and raises different constitutional and legal questions. Two of these models, the equal protection and arrest alternatives models have not been widely adopted and are not often included as part of bail reform conversations. This Article recommends a composite model that adopts elements of each model, using a separation-of-powers approach to target pretrial actors whose discretion can otherwise undermine each other’s compliance. This Article concludes by discussing a comprehensive vision for bail reform outside the criminal legal system.

November 26, 2021 | Permalink | Comments (0)

Farhidi on Cops and Crime Rates

Faraz Farhidi (Georgia State University) has posted Do We Need More Cops? An Analysis of the Determinants of Metro Crime Rates on SSRN. Here is the abstract:
 
This paper studies and theorize the impact that law enforcement in cities has on criminal activities. Exploring primarily covariates, the results from two IV approaches show that increasing police officers in regions does not reduce the corresponding crimes. There are two sets of data used in this research for each IV strategy—first, the city-level data for more than a hundred cities across the US. Second is the state-level data for fifty states and DC. Falsification tests are conducted to validate the empirical conclusion. Based on the results, I propose an alternative theoretical model compared to the conventional framework, in which there is a trade-off between hiring more enforcement law forces and raising taxes in an economy.

November 26, 2021 | Permalink | Comments (0)

Thursday, November 25, 2021

Abramovaite et al. on Testing Deterrence Theory

Juste AbramovaiteSiddhartha BandyopadhyaySamrat Bhattacharya and Nick Cowen (University of Birmingham, University of Birmingham - Department of Economics, Fifth Third Bank - Asset Management Division and School of Social and Political Sciences, University of Lincoln) have posted Classical deterrence theory revisited: an empirical analysis of Police Force Areas in England and Wales (European Journal of Criminology) on SSRN. Here is the abstract:
 
The severity, certainty and celerity (swiftness) of punishment are theorised to influence offending through deterrence. Yet celerity is only occasionally included in empirical studies of criminal activity and the three deterrence factors have rarely been analysed in one empirical model. We address this gap with an analysis using unique panel data of recorded theft, burglary and violence against the person for 41 Police Force Areas in England and Wales using variables that capture these three theorised factors of deterrence. Police detection reduces subsequent burglary and theft but not violence while severity appears to reduce burglary but not theft or violent crime. We find that variation in the celerity of sanction has a significant impact on theft offences but not on burglary or violence offences. Increased average prison sentences reduce burglary only. We account for these results in terms of data challenges and the likely different motivations underlying violent and acquisitive crime.

November 25, 2021 | Permalink | Comments (0)

Wednesday, November 24, 2021

Berry & Ryan on Eighth Amendment Values

William W. Berry and Meghan J. Ryan (University of Mississippi School of Law and Southern Methodist University - Dedman School of Law) have posted Eighth Amendment Values (The Eighth Amendment and Its Future in a New Age of Punishment (Cambridge U. Press)) on SSRN. Here is the abstract:
 
As with many constitutional provisions, the language of the Eighth Amendment is open-ended and vague in its proscription of excessive bail, excessive fines, and cruel and unusual punishments. Because the language of the Constitution does not provide any additional descriptive information concerning what might make bail or fines excessive, or punishments cruel and unusual, courts must look beyond the text itself to ascertain the meaning of the Eighth Amendment. With respect to the prohibition on cruel and unusual punishments, the U.S. Supreme Court has, over the course of several decades, articulated a number of relevant underlying values that offer some guidance in interpreting this Eighth Amendment provision. These values are also helpful in assessing the excessiveness of bail and fines.

This Chapter explores several of these core Eighth Amendment values, providing an overview of their origin and indicating how such values might apply in interpreting the Eighth Amendment in the future. Specifically, this Chapter discusses the principles of dignity, individualized sentencing, proportionality—both absolute and comparative, humanness, non-arbitrariness, and differentness. The Court has explicitly or implicitly invoked each of these values in its Eighth Amendment cases and detailed the scope and importance of these values to varying degrees. For the most part, though, the Court has remained opaque about how much each of these values influences, and should influence, its Eighth Amendment decisions.

November 24, 2021 | Permalink | Comments (0)

Tyler on Habeas Corpus

Amanda L. Tyler (University of California, Berkeley - School of Law) has posted Habeas Corpus: A Very Short Introduction (Excerpt) (Oxford University Press 2021) on SSRN. Here is the abstract:
 
This Very Short Introduction will tell the story of what is sometimes known as “the Great Writ” as it has unfolded in Anglo-American law. The primary jurisdictions explored will be Great Britain and the United States, but many aspects of this story will ring familiar to those in other countries with a robust habeas tradition. Along the way, the book will chronicle the long-standing role of the common law writ as a vehicle for reviewing detentions for conformity with underlying law, as well as more specifically the profound influence of the English Habeas Corpus Act of 1679 on Anglo-American law. The book will highlight how under certain circumstances the common law writ has come up short. It will also, however, tell stories of how on other occasions the common law writ has proved immensely significant in the story of individual liberty, including, to offer but one example, as a vehicle for freeing slaves.

Continue reading

November 24, 2021 | Permalink | Comments (0)