CrimProf Blog

Adler on Our Federalism on Drugs

Jonathan H. Adler (Case Western Reserve University School of Law) has posted Our Federalism on Drugs (Forthcoming, Marijuana Federalism: Uncle Sam and Mary Jane (Jonathan H. Adler Ed., Brookings Institution Press, 2020)) on SSRN. Here is the abstract:

 

Over the past decade, voters and legislatures have moved to legalize the possession of marijuana under state law. Some have limited these reforms to the medicinal use of marijuana, while others have not. Despite these reforms marijuana remains illegal under federal law. Although the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the United States, this federal-state conflict is particularly important if one wishes to understand marijuana law and policy today. This brief essay is the introductory chapter to Marijuana Federalism: Uncle Sam and Mary Jane (Jonathan H. Adler ed., Brookings Institution Press, 2020), an edited volume that explores the legal and policy issues presented by the federal-state conflict in marijuana law. It provides an overview of the relevant issues and a survey of the remaining chapters in the volume.

Graham on DNA Evidence

Kenneth W. Graham (University of California, Los Angeles (UCLA) - School of Law) has posted Is DNA Evidence Relevant? on SSRN. Here is the abstract:

 

In admitting DNA sample taken at the crime scene in 2010 to compare it with a DNA sample taken from the defendant in 2020 courts assume that the defendant’s DNA has not changed in the prior ten years. This article questions that assumption using scientific findings published in the journals Scientific American and Science News.

Rahangdale on Witness Protection Programs

Prashant Rahangdale (Amity University - Amity Law School) has posted Witness Protection: A Comparative Analysis of Indian and Australian Legislation (Journal of the Gujarat Research Society Volume 21 Issue 3, 2019) on SSRN. Here is the abstract:

 

Witness plays a very important role in the criminal justice system. The outcome of any trial is based on the testimony witness. Without his assistance Court could not sumup with a judicious decision. However, it has been seen in various instances that witnesses turn hostile during the course of a trial. The main reason behind hostility is that the witness is threatened and being pressurized by the accused or his family members to offer testimony in his/her favour. This has turned to a miscarriage of justice. Therefore, there is a need to adopt a proper and effective witness protection policy in the country. In light of the above issue, the Central government had notified a Scheme called Witness Protection Scheme, 2018. Although the scheme was adopted in full enthusiasm and zeal it has not served its purpose. There are various countries like USA, UK, Australia, Germany, Canada, etc. who have incorporated witness protection program in their domestic laws. The witness protection program in Australia is serving its objective by providing protection to the witness in their country. This research paper is based on a comparative study of the witness protection program in India and Australia to identify the possible outcome.

Bandes on Remorse and Judging

Susan A. Bandes (DePaul University - College of Law) has posted Remorse and Judging (in Remorse in Criminal Justice: Multi-Disciplinary Perspectives, Routledge, Taylor & Francis Group, 2020, Forthcoming) on SSRN. Here is the abstract:

 

This chapter focuses on the judicial evaluation of remorse. It is an article of faith that judges can and should evaluate remorse when determining sentence. Although the dynamics of this evaluation are understudied, the existing literature helps illuminate the assumptions judges employ and the dangers and limitations of those assumptions. Judges rely on evaluation of demeanor and body language and on allocution, and their interpretations are rife with implicit assumptions and unstated rules about what counts as remorse. Many of these assumptions (for example the link between remorse and decreased recidivism and the possibility of assessing remorse from demeanor) lack evidentiary support. These assumptions and implicit rules vary widely from judge to judge. They often fail to account for the influence of race, ethnicity, gender and social class on the expression and evaluation of remorse. Moreover, they put a premium on the willingness to plead guilty, and to do so at the earliest possible opportunity. The chapter draws upon the few existing empirical studies on the topic and identifies areas that require further study.

Albin on Fantasies, Dreams, and Rape Shield Laws

Ramona Albin (Samford University - Cumberland School of Law) has posted Appropriating Women's Thoughts: The Admissibility of Sexual Fantasies and Dreams Under the Consent Exception to Rape Shield Laws (Kansas Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Rape shield laws generally prohibit the admission of evidence of the victim’s prior sexual behavior and sexual predisposition. There are, however, exceptions to the general prohibition. Significantly, evidence of the victim’s sexual behavior with the defendant may still be admissible if the defendant claims consent. And, in the context of a consent defense, not only is the victim’s physical conduct with the defendant potentially admissible, but so are her voiced sexual fantasies or dreams involving the defendant. Thus, woman’s thoughts, imagined or even unconscious, may be appropriated as evidence of consent under current rape shield laws.

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Ceil on Corporate Manslaughter in UK and Canada

Chenoy Ceil has posted Corporate Manslaughter Comparison in UK and Canada on SSRN. Here is the abstract:

Corporate policies also impact the lives and rights of the people with whom the corporation is interacting. Under such circumstances, it was only natural to pave way for corporate manslaughter laws in different countries to control the liability of corporations. Canada and UK have their roots in English common law and has the same genesis. From this research paper we can see that UK corporate manslaughter law has evolved better that their Canadian counterpart. Some of the doctrines of criminal liability such as the identification theory and organizational liability is common to both the UK and Canada.

Tokson on The Fourth Amendment After Carpenter

Matthew Tokson (University of Utah - S.J. Quinney College of Law) has posted 42nd Annual Foulston-Siefkin Lecture: The Next Wave of Fourth Amendment Challenges After Carpenter (Washburn Law Journal, Forthcoming) on SSRN. Here is the abstract:

The lecture discusses the future of Fourth Amendment law following the Supreme Court’s enormously important decision in Carpenter v. United States. It analyzes Carpenter and argues that its detailed account of the privacy harms caused by government surveillance will be its most important legacy. Moreover, the Court’s emphasis on the risk of privacy harm is not a one-off or a sharp break from previous practice. Carpenter is consistent with a long line of Supreme Court decisions ignoring or reshaping previous Fourth Amendment doctrines when necessary to protect citizens against unchecked surveillance. It also echoes previous cases that focus on the revealing, extensive, or intimate nature of surveillance when assessing whether a Fourth Amendment search has occurred.

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Coccia on Fear and Reality of Crime

Mario Coccia (National Research Council of Italy (CNR)) has posted The Politics of Fear and Relationship With the Effective Level of Crime and Socioeconomic Issues: Empirical Analysis of a Case Study (Journal of Economics Bibliography, Vol 6, No. 4, pp. 357-374, 2020) on SSRN. Here is the abstract:

 

The goal of this study is to analyze if a perceived risk of crime and social issues is supported by effective levels of empirical data. This study focuses on a vital case study, Italy that is one of the largest economies in Europe with socioeconomic issues also with a high flows of immigration from Africa and Middle East. Descriptive statistics and non-parametric analyses are applied on data from EUROSTAT and UNODC over a period from 2000 to 2019. Although levels of crime and immigration are declining over time, perceived risk of these social issues is high. In general, the perceived risk of crime seems to be overestimated. The only factor of concern in Italian economy for population is the increasing level of unemployment that can be a source of social issues. These results seem to be due to misleading information diffused by some political parties with media that induce people to overestimate perceived risk of crime and immigration: the politics of fear. The findings of this paper can provide a preliminary analysis and encourage the development of more in-depth studies to better understand the sources of fear of crime due to social issues and their possible interrelationships with social and political contexts in order to support appropriate policies in society.

Cunningham et al. on Violent Crime and Video Games

Scott Cunningham, Benjamin Engelstätter and Michael R. Ward (Baylor University, University of Applied Sciences Darmstadt and University of Texas at Arlington - College of Business Administration - Department of Economics) have posted Understanding the Effects of Violent Video Games on Violent Crime on SSRN. Here is the abstract:

 

Video games are an increasingly popular leisure activity. As many of best-selling games contain hyper-realistic violence, many researchers and policymakers have concluded that violent games cause violent behaviors. Evidence on a causal effect of violent games on violence is usually based on laboratory experiments finding violent games increase aggression. Before drawing policy conclusions about the effect of violent games on actual behavior, these experimental studies should be subjected to tests of external validity. Our study uses a quasi-experimental methodology to identify the short and medium run effects of violent game sales on violent crime using time variation in retail unit sales data of the top 50 selling video games and violent criminal offenses from the National Incident Based Reporting System (NIBRS) for each week of 2005 to 2008. We instrument for game sales with game characteristics, game quality and time on the market, and estimate that, while a one percent increase in violent games is associated with up to a 0.03% decrease in violent crime, non-violent games appear to have no effect on crime rates.

Todres on Human Trafficking and Film

Jonathan Todres (Georgia State University College of Law) has posted Human Trafficking and Film: How Popular Portrayals Influence Law and Public Perception (Cornell Law Review Online, Vol. 101, pp 1-24 2015) on SSRN. Here is the abstract:

 

Popular portrayals of human trafficking matter. They shape the prevailing understanding of the issue, which in turn influences the law and policy developed to address human trafficking. This essay examines the interplay between law and culture, specifically cinematic expressions. It reviews three well-known films on human trafficking and explores some of the key misconceptions in each movie. The essay then shows how these misconceptions are prevalent in many law and policy responses to human trafficking. Finally, the author suggests how scholars and advocates might respond more effectively to cinematic (and other media) portrayals of human trafficking.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Hiding Homelessness: The Transcarceration of Homelessness Sara Rankin Seattle University School of Law Date Posted: 26 Dec 2019	127
2.	An Intellectual History of Mass Incarceration Alice Ristroph Brooklyn Law School Date Posted: 23 Dec 2019	120
3.	Black Deaths Matter: The Race-of-Victim Effect and Capital Punishment Daniel S. Medwed Northeastern University - School of Law Date Posted: 30 Jan 2020 [new to top ten]	75
4.	Second Looks & Criminal Legislation Michael Serota Arizona State University, Sandra Day O'Connor College of Law Date Posted: 11 Dec 2019 [3rd last week]	61
5.	Do Criminal Minds Cause Crime? Neuroscience and the Physicalism Dilemma John A. Humbach Pace University School of Law Date Posted: 31 Dec 2019 [4th last week]	55
6.	Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America Justin D. Levinson, Robert J. Smith and Koichi Hioki University of Hawaii at Manoa - William S. Richardson School of Law, Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) and Kobe University - Graduate School of Business Administration Date Posted: 13 Jan 2020 [5th last week]	48
7.	Sex, Reasons, Pro Tanto Wronging, and the Structure of Rape Liability Kate Greasley University of Oxford, Faculty of Law Date Posted: 30 Jan 2020 [new to top ten]	45
8.	Task Force Raptor: Failure of Military Justice Dennis Chapman Independent Date Posted: 31 Jan 2020 [6th last week]	39
9.	Institutionalizing Consent Myths in Grade School Shawn Fields Campbell University - Norman Adrian Wiggins School of Law Date Posted: 03 Feb 2020 [new to top ten]	38
10.	Criminalizing Sex: A Unified Liberal Theory (Book Introduction) Stuart P. Green Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 29 Jan 2020 [new to top ten]	36

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Problem of Problem-Solving Courts Erin Collins University of Richmond School of Law Date Posted: 09 Dec 2019	442
2.	The Defender General Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 16 Jan 2020	416
3.	Tasing the Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, and the Validity of Subsequent Constitutional Rights Waivers Andreas Kuersten Georgetown University - Center for Clinical Bioethics Date Posted: 08 Jan 2020 [4th last week]	84
4.	Predictive Policing Theory Andrew Guthrie Ferguson American University Washington College of Law Date Posted: 16 Jan 2020 [3rd last week]	75
5.	Misplaced Constitutional Rights Brandon L. Garrett Duke University School of Law Date Posted: 23 Dec 2019	61
6.	Narrative, Culture, and Individuation: A Criminal Defense Lawyer’s Race-Conscious Approach to Reduce Implicit Bias for Latinxs Walter Gonçalves Federal Public Defender, Dist. of Arizona Date Posted: 31 Jan 2020 [new to top ten]	54
7.	Dignity and Therapeutic Jurisprudence: How We Can Best End Shame and Humiliation Michael L. Perlin New York Law School Date Posted: 01 Jan 2020 [6th last week]	51
8.	An Empirical Assessment of Pretextual Stops and Racial Profiling Stephen Rushin and Griffin Sims Edwards Loyola University Chicago School of Law and University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics Date Posted: 10 Jan 2020 [7th last week]	51
9.	Sovereign Speech in Troubled Times: Prosecutorial Statements as Extrajudicial Admissions Amir Shachmurove Harvard Law School Date Posted: 15 Jan 2020 [10th last week]	47
10.	Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America Justin D. Levinson, Robert J. Smith and Koichi Hioki University of Hawaii at Manoa - William S. Richardson School of Law, Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) and Kobe University - Graduate School of Business Administration Date Posted: 13 Jan 2020 [8th last week]	45

Heaton on Pretrial Detention

Paul S. Heaton (University of Pennsylvania Law School) has posted The Expansive Reach of Pretrial Detention (North Carolina Law Review, Vol. 98, Pg. 369, 2020) on SSRN. Here is the abstract:

 

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention also reduces future employment and access to social safety nets. This growing evidence of pretrial detention’s high costs should give impetus to reform efforts that increase due process protections to ensure detention is limited to only those situations where it is truly necessary and identify alternatives to detention that can better promote court appearance and public safety.

Goldman & Miers on Internet Companies and Awful Online Content

Eric Goldman and Jess Miers (Santa Clara University - School of Law and Santa Clara University - School of Law) have posted Why Internet Companies Can't Stop Awful Content on SSRN. Here is the abstract:

This essay considers the widely held perception that the Internet is filled with awful content. That perception often overlooks (1) the pervasiveness of awful content offline, and (2) why content moderation efforts to control awful content will never be satisfactory. As a result, regulatory efforts to eliminate awful content online are doomed. In contrast, the existing immunity provided by 47 USC 230 has the surprising potential to lower the amount of awful content online below the offline content baselines.

Futrell on The Ethics of Defenders' Using Client Information

Nicole Smith Futrell (CUNY School of Law) has posted Please Tweet Responsibly: The Social and Professional Ethics of Public Defenders Using Client Information in Social Media Advocacy (NACDL, The Champion, December 2019 at p.12) on SSRN. Here is the abstract:

 

Every day the criminal legal system hauls poor and marginalized individuals through a process wrought with trauma, indignity, and abuse. Public defenders representing the criminally accused view their clients and the system from a unique vantage point: they bear witness to the human costs of a system that falls far short of its purported norms and ideals. For the public defender who works within this reality day in and day out, fighting for each individual client might feel limited in its wider impact. Some public defenders have found that using online and social media platforms, such as Twitter, to provide insights and commentary on the human toll of the criminal legal system is one way to contribute to a deepened public awareness of the criminal legal system’s shortcomings. Indeed, while statistics about mass criminalization and mass incarceration provide powerful data points, narratives about the very real ways that clients experience being arrested, charged, processed and adjudicated can influence public debate and create momentum for both an individual case and more comprehensive systemic reform.

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Arvind & Burset on Entick v. Carrington

T. T. Arvind and Christian Burset (York Law School and Notre Dame Law School) have posted A New Report of Entick v. Carrington (1765) on SSRN. Here is the abstract:

 

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation, and for more than 130 years, the Court has read Entick carefully to learn the original meaning of the Fourth Amendment. But the Court has been reading a flawed version of the case. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, as well as how this new discovery might challenge prevailing assumptions about the Fourth Amendment and Entick’s place in British and American constitutional history more broadly. Although we leave a full reevaluation of Entick for future scholarship, we show that any future judicial or academic discussion of the case must take this new report into account.

Levine et al. on The Many Faces of Prosecution

Kay Levine, Ronald F. Wright and Marc L. Miller (Emory University School of Law, Wake Forest University - School of Law and University of Arizona College of Law) have posted The Many Faces of Prosecution on SSRN. Here is the abstract:

 

A quick read through the bulky legal literature about criminal prosecution in the US might lead a reader to conclude that individual prosecutors, and the offices where they work, are very much the same. All prosecution professionals seem to fit the mold, regardless of the region where they work, the size of their office, or their years of experience on the job.

This generic portrait of prosecution, and of prosecutors, misses the mark. If one were to look beneath the surface to examine the professionals who work in the more than 2,500 individual prosecutor’s offices in this country, diversity would drive the story—diversity in terms of demographic profile, career plans, office policies, quality of work, and more. The point applies both to individuals and to institutions. At the individual level, one is bound to find some bad apples and some good eggs who work in the prosecutor’s office. As for the institutional setting, there are bad incentives and corrosive cultures that overcome even the best of intentions from the individuals who work there; offices elsewhere create good incentives, with a lot of institutional variation in between.

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Boles on Money Laundering

Jeffrey R. Boles (Temple University - Department of Legal Studies in Business) has posted two manuscripts on SSRN on the topic. The first is Anti-Money Laundering Initiatives for the South African Real Estate Market (1 Journal of Comparative Urban Law and Policy 197 (2017)). Here is the abstract:

 

South Africa operates as a major African financial center, with its robust banking and financial sector and significant cash-based market, and it consequently exposes itself as an attractive target for criminal activity generally and money laundering in particular. Long known as a money laundering hotspot, South Africa shows a low prosecution rate under its main anti-money laundering legislation. Former Finance Minister Trevor Manuel estimated in 2001 that between 2 billion and 8 billion US dollars are laundered through South African institutions annually. The South African real estate market in particular provides opportunities for criminals to launder their funds through purchasing and/or developing properties. Criminals can use the luxury real estate market in the Western Cape Province, for instance, to launder sizeable amounts of illicit funds through buying high-end properties via cash and offshore shell companies that hide their true owners, and the purchased real estate functions as the means to launder the criminal proceeds. Money laundering in real estate is a classic method of laundering money given that the funds can be hidden in real estate by multiple transactions cloaking the illicit source. This Article analyzes money laundering in the South African real estate sector, and in particular, “the darkest corner of the real estate market: all-cash purchases made by shell companies that often shield purchasers’ identities,” and recommends specific initiatives that may help combat the offense in this sector.

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Douglas on Michael Milken

Kevin Douglas (George Mason University - Antonin Scalia Law School) has posted Michael Milken: A Case Study in America’s Moral Schism (Tennessee Journal of Law and Policy, Forthcoming) on SSRN. Here is the abstract:

 

This brief article explores competing views on Michael Milken and tries to extrapolate some implications for American law and culture. Milken has been described as a genius, a thief, an industrial revolutionary, a rapacious predator, and the person you would want your children to be when they grow up. Some praise Milken for inspiring private equity and other modern acquisition methods. His approach to corporate finance birthed the takeover frenzy of the 1970s and 80s and normalized the use of leveraged buyouts as a reorganization tool. Others see Milken as a symbol of personal greed and social pathology. Critics have charged that his use of debt to takeover and restructure companies (often laying off employees) is akin to piracy and represents the very worst of a capitalist economy.

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Skeem & Monahan on Implementing the First Step Act

Jennifer L. Skeem and John Monahan (University of California, Berkeley and University of Virginia School of Law) have posted Lost in Translation: 'Risks' 'Needs,' and 'Evidence' in Implementing the First Step Act on SSRN. Here is the abstract:

 

In this article, we focus on two highly problematic issues in the manner in which the First Step Act of 2018 is being implemented by the Bureau of Prisons: (1) an uncritical separation of “dynamic risks” and “criminogenic needs” and (2) a spurious reliance on “evidence-based” interventions to reduce recidivism risk. We argue that if the Act is to live up to its promise of being a game-changing development in efforts to reduce crime while simultaneously shrinking mass incarceration, “needs assessment” must be subject to vastly increased empirical attention, variable and causal risk factors must be identified and validly assessed, and interventions to reduce risk must be rigorously evaluated both for their fidelity of implementation and impact on recidivism. Rather than further proliferating programs that ostensibly reduce risk, we believe that serious consideration should be given to the Bureau of Prisons offering one signature, well-established cognitive-behavioral program that can simultaneously address multiple risk factors for moderate and high-risk prisoners.