CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Original Meaning of “Due Process of Law” in the Fifth Amendment Lawrence B. Solum and Max Crema University of Virginia School of Law and affiliation not provided to SSRN Date Posted: 10 May 2022	356
2.	The Coherence of Prison Law Sharon Dolovich University of California, Los Angeles - School of Law Date Posted: 30 Aug 2022 [new to top ten]	158
3.	Fourteenth Amendment Confrontation Evan D. Bernick Northern Illinois University - College of Law Date Posted: 06 Aug 2022 [2nd last week]	155
4.	The Progressive Love Affair with the Carceral State (Book Review) Kate Levine Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 01 Sep 2022 [4th last week]	132
5.	Using Consent to Expand Tribal Court Criminal Jurisdiction Grant Christensen Stetson University - College of Law Date Posted: 14 Sep 2022 [new to top ten]	131
6.	Theorizing Corroboration Maggie Wittlin Fordham University School of Law Date Posted: 30 Jul 2022 [5th last week]	98
7.	Fourth Amendment Notice in the Cloud Jesse Lieberfeld and Neil M. Richards Cordell Institute for Policy in Medicine & Law and Washington University School of Law Date Posted: 23 Aug 2022 [8th last week]	97
8.	McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride Josh Bowers University of Virginia School of Law Date Posted: 22 Jul 2022 [7th last week]	96
9.	Beyond Binary Thinking: Addressing the Biases That Threaten the Progressive Prosecution Movement Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 06 May 2022 [6th last week]	95
10.	How Accurate are Rebuttable Presumptions of Pretrial Dangerousness? A Natural Experiment from New Mexico Cristopher Moore, Elise Ferguson and Paul Guerin Santa Fe Institute, affiliation not provided to SSRN and affiliation not provided to SSRN Date Posted: 09 Jul 2022 [9th last week]	80

Bender on Comparative Truth and Fairness

Philip Maximilian Bender (Max Planck Institute for Tax Law and Public Finance) has posted Same Ends, Different Means: Truth and Fairness in Criminal Procedure of the United States and Germany on SSRN. Here is the abstract:

 

An important part of the academic contributions on criminal procedure tries to make sense of the differences between US and German criminal procedure in terms of the ends pursued. According to these contributions, US criminal procedure is oriented towards fairness and the German system aims at truth (ends-based narrative). However, at a closer look, both countries pursue truth as the overarching goal of criminal procedure and both countries try to obtain it through procedural tools. Their respective criminal justice systems do not differ so much in terms of the ends pursued but rather in terms of the concrete means applied (means-based narrative). This article wants to provide support for this means-based narrative by examining the legal origins of both systems, the presence or absence of jury trials, plea bargaining, exclusionary rules, especially the fruit of the poisonous tree doctrine, and rules concerning the impeachment of witnesses. I will first interpret each of these points according to the ends-based narrative, associating the US adversarial model with fairness and the German inquisitorial system with truth. Then, I will show that just as we can interpret US rules in terms of truth, we can make sense of the German legal institutions in terms of fairness. In a brief conclusion, I will suggest that the means-based analysis should focus on the different design of legal norms in both systems.

Gowder on Unlawful Criminal Law

Paul A. Gowder (Northwestern University - Pritzker School of Law) has posted Is Criminal Law Unlawful? (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract:

 

A legal theorist reading contemporary criminal justice scholarship is confronted with a troubling sense of dissonance. Foundational to modern accounts of the concept of law are rules, and the chief modality of law’s operation in ordinary peoples’ lives is said to be in enforcing those (primary) rules. Normative theories by philosophers of law typically deploy this rule- oriented character as a key virtue of legal systems, whether in Fullerian theories of the moral value of law itself in terms of their facilitation of autonomous self-application of rules, or in theories of the rule of law according to which one of the key criteria of good legal systems is that they only coerce individuals pursuant to rules.

Yet criminal justice scholars have known for decades that rule-enforcement is at best incidental to vast swathes of criminal justice. Even before the advent of “broken windows” policing, a large portion of police work was focused on coercively organizing public space, with minimal regard to the rules of substantive law.

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Christensen on Consent to Tribal Court Jurisdiction

Grant Christensen (Stetson University - College of Law) has posted Using Consent to Expand Tribal Court Criminal Jurisdiction (California Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In June of 2022 the Supreme Court reversed two-hundred years of precedent and held in a 5-4 opinion that states have concurrent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian country. Oklahoma v. Castro-Huerta. In conducting the preemption analysis Justice Kavanaugh’s majority opinion reasoned that while states have a strong interest in prosecuting crimes in Indian country in order to keep the community safe, tribes had functionally no interest because they generally lack criminal jurisdiction over non-Indians. The court then reasoned that the lack of a tribal interest could not preempt the state interest. This article suggests, despite the general prohibition on tribes asserting criminal jurisdiction over non-Indians that was discovered by the Supreme Court in 1978’s Oliphant opinion, tribes can assert criminal jurisdiction over non-Indians who consent to the jurisdiction in tribal court. The argument extends to both affirmative and implied consent and draws its authority from both pre-Oliphant scholarship and precedent as well as from recent development by the Court, Congress, and dicta from the Ninth Circuit. If tribes are able to regularly assert some criminal jurisdiction over non-Indians, then when lower courts apply Castro-Huerta in the future there will be a strong tribal interest to preempt state criminal jurisdiction in Indian country.

Reyes on AI and Criminal Justice

Carla Reyes (Southern Methodist University - Dedman School of Law) has posted Emerging Technology’s Language Wars: AI and Criminal Justice (Journal of Law & Innovation (2022 Forthcoming)) on SSRN. Here is the abstract:

 

Work at the intersection of Artificial Intelligence systems (AI systems) and criminal justice suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, researchers, law-makers, software developers, engineers, judges, and the public all talk past each other, using the same words, but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates. Doing so offers a tool for reconciling specific linguistic ambiguities before they are embedded in law and ensures more effective communication of the technical pre-requisites for AI systems that, by design, seek to achieve their intended purpose while also upholding core democratic values in the criminal justice system.

Rothstein et al. on Ruan v US

Mark A. Rothstein, Mary Dyche and Julia Irzyk (University of Louisville - Institute for Bioethics, Health Policy, and Law, O'Bryan Brown & Toner and Independent) have posted Doctors and Pain Patients Avoid 'Ruan' in the Supreme Court (Forthcoming in the Journal of Law, Medicine & Ethics, vol. 50, no. 4 (2022)) on SSRN. Here is the abstract:

 

Physicians’ fear of criminal prosecution for prescribing opioid analgesics is a major reason why many chronic pain patients are having an increasingly difficult time obtaining medically appropriate pain relief. In Ruan v. United States, 142 S. Ct. 2370 (2022), the Supreme Court unanimously vacated two federal convictions under the Controlled Substances Act. The lead opinion held that once a defendant produces evidence that his or her conduct as a licensed professional was “authorized,” the government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner. Although federal convictions of physicians are less likely under this holding, it is not clear whether it will lessen the fears of physicians and result in greater access to appropriate pain management.

Davis on Capital Punishment

Peggy Cooper Davis (New York University Law School) has posted an abstract of Georgia on My Mind (Amicus Journal Issue 43 (2022) Fighting for Justice on Death Row) on SSRN. Here is the abstract:

 

To commemorating the 50th anniversary of the Supreme Court decision in Furman v. Georgia, Professor Davis comments on the cruel futility of capital punishment and the dedicated work of abolitionist lawyers.

Caliman & Berryessa on Autism Spectrum Disorder

Carolina Caliman and Colleen M. Berryessa (Rutgers, The State University of New Jersey - School of Criminal Justice and Rutgers, The State University of New Jersey - School of Criminal Justice) have posted Legal Decision-Makers in Criminal Cases involving Autism Spectrum Disorder: A Review of the Research and a Call for Action (Forthcoming 2024, In B. Bornstein, M.K. Miller, and D. DeMatteo, Advances in Psychology and Law (Vol. 7). Springer) on SSRN. Here is the abstract:

 

Autism Spectrum Disorder (ASD) is a spectrum of neurodevelopmental disorders marked by impairments in social interactions, communication, hypersensitivity, and systematic patterns of behavior. Although the large majority of individuals with ASD are law-abiding, many individuals with ASD continue to become involved in the criminal-legal system as defendants each year. Yet research indicates that legal decision-makers in court are often unaware of the potential forensic significance of ASD, which may lead to negative legal consequences for diagnosed defendants. This chapter provides a thorough overview of how and why defendants with ASD create challenges and issues for decision-makers in criminal cases, including a discussion on the forensic relevance of ASD and its symptomatology to both offending and courtroom behaviors, a review of the limited existing literature on the perceptions and decision-making of potential jurors, judges, and attorneys in cases involving defendants with ASD, and an examination of different stages of the criminal-legal process in which ASD may be forensically significant. Finally, this chapter provides three recommendations for decision-makers on how to potentially reduce negative legal consequences and outcomes for defendants with ASD, as well as calls for and identifies areas of future research at this nexus.

Lave on Police Violence

Tamara Rice Lave (University of Miami, School of Law) has posted Blame the Victim: How Mistreatment by the State Is Used to Legitimize Police Violence (Brooklyn Law Review , Vol. 87, 2022) on SSRN. Here is the abstract:

 

The surprising thing about George Floyd is not that he was killed by the police. What is remarkable is that the officer who killed him was charged, convicted, and sentenced to more than twenty-two years in prison. This article examines the institutional mechanisms that support police violence against Black people. In the process, it illuminates the insidious ways in which state actors exploit structural social, economic, and health mistreatment to legitimize police violence. After exploring these issues, this article provides suggestions to reform our institutions in a manner that will bring about meaningful and lasting change.

Moyd on Counsel at Parole Revocation Hearings

Olinda Moyd (WCL Clinical Programs) has posted In the Shadow of Gideon: No Sixth Amendment Right to Counsel at Parole Revocation Hearings (6 Howard Human and Civil Rights Law Review,31 (2021)) on SSRN. Here is the abstract:

 

Unlike the drama that unfolds at a criminal trial before a judicial body, representing parolees at revocation hearings attracts minimal intellectual curiosity from academic scholars, and is foreign to most members of the bar. The law establishing due process rights at revocation hearings has primarily remained unchanged, and novel legal challenges are rare. Recent social unrests have forced the United States to open its eyes and become more “woke” to the racial and economic disparities inherent in our criminal legal system. It is therefore imperative that we examine the critical role lawyers play at every stage of the criminal system, in an effort to upend a justice system gone amiss. There is a glaring absence of the right to counsel at parole revocation hearings, even though the stakes are high, and loss of freedom is routinely the outcome. The movement towards making fairness of the law more attainable for everyone must include securing due process rights for those impacted long after the trial has ended and out of the public eye. The due process right to counsel at sentencing must extend to parole revocation hearings where sentencing routinely takes place and loss of liberty is a reality.

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Wang on Miranda after Vega v. Tekoh

Tim (Xiaoming) Wang has posted Constitutionally Required, in Part: Miranda After Vega v. Tekoh (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:

At issue in the recently decided Vega v. Tekoh case was whether a defendant who was denied his Miranda rights had a cause of action in § 1983. In holding that he did not, the Court also declared decisively that Miranda warnings are not in fact a constitutional right. If that is true, then what basis does the Court have to overturn, as it did in Dickerson v. United States, a legislative attempt to supersede Miranda? This article articulates a reading of Miranda that both dispels the potential constitutional impropriety of Dickerson and comports with Vega.

Waldman on Policing Queer Sexuality

Ari Ezra Waldman (Northeastern University School of Law and Khoury College of Computer Sciences, Center for Law, Information and Creativity (CLIC)) has posted Policing Queer Sexuality (Michigan Law Review, Vol. 121, Forthcoming) on SSRN. Here is the abstract:

 

Texas considers gender-affirming healthcare child abuse. A ban on gender-affirming hormone therapy was signed into law by the governor of Arkansas in 2021, the year the Human Rights Campaign called the “worst year in recent history” for repeated legislative attacks on trans rights. In 2020, a federal appeals court overturned a city’s ban on gay conversion therapy, holding that the free speech rights of therapists predominate over the government’s interest in protecting queer adolescents. Eleven states require individuals seeking abortions to be told that the procedure causes depression, infertility, or breast cancer. None of these policies withstand scientific scrutiny. The scientific consensus says that hormone therapies are safe and necessary, that abortion does not cause psychological or physical harm, and that conversion therapy is torture and dangerous. Facts and scientific expertise are under assault in the lawmaking and adjudicative processes.

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Freedman on Criminally Punishable Protest

Allison Freedman (University of New Mexico - School of Law) has posted Arresting Assembly: An Argument Against Expanding Criminally Punishable Protest (Villanova Law Review, Vol. 68, Forthcoming) on SSRN. Here is the abstract:

 

In recent years, public protests have shed light on societal inequities that had previously gone unheard. Yet instead of responding to protestors’ concerns, many state legislators are attempting to silence disenfranchised groups by introducing hundreds of “anti-protest” bills. This is a recent phenomenon and one that seems to be accelerating—the largest wave of “anti-protest” bills have been introduced on the heels of the most robust protest movement in recent history, Black Lives Matter during the summer of 2020.

Although it is clear that legislators are attempting to tamp down public protest through restrictive legislation, it is less clear why state legislators have been emboldened to encroach on the assembly right in recent years. One answer may lie in the Supreme Court’s treatment of this fundamental right. Although the First Amendment articulates the “right of the people peaceably to assemble,” the Supreme Court has not decided a case explicitly on free assembly grounds in forty years. Instead, it has collapsed the right of assembly into the First Amendment’s other free expression guarantees. In doing so, it has relied on a relatively weak free speech standard—“time, place, and manner”—that provides minimal protection for public dissenters.

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Fehr on Criminal Defenses

Colton Fehr (Thompson Rivers University, Faculty of Law) has posted The Moral Foundation of Criminal Defences and the Limits of Constitutional Law ((2023) 69 McGill Law Journal (Forthcoming)) on SSRN. Here is the abstract:

 

The Supreme Court of Canada’s decision in R v Khill provided a novel moral framework for self-defence. Whereas self-defence was previously categorized as a justification, the Court now maintains that it constitutes an excuse in some cases. In other cases, the Court suggests self-defence sits between justification and excuse, captured by a principle I elsewhere call ‘moral permissibility’. The Court’s choice to adopt a more robust relationship between the moral principles underlying justification/excuse and self-defence is principled. However, the basis for that conclusion—the application of moral philosophy to the law of criminal defences—applies with equal force to the law of duress and necessity. Unfortunately, the statutory duress defence and section 8(3) of the Criminal Code limit the juristic scope of those defences. Although these restrictions may be challenged under section 7 of the Charter, this challenge will likely fail as defendants need not be denied a defence. Instead, they will be denied a proper moral assessment of their actions. To instill greater coherency into the law, it is prudent to repeal the statutory duress defence. This approach would allow courts to utilize the broad wording of the new ‘defence of person’ provision to develop the law of self-defence, necessity, and duress in line with the moral philosophy underlying these defences. Constitutionalizing the principles underlying criminal defences can nevertheless serve two broader purposes: mitigating the tendency of courts and counsel to unduly rely upon other less transparent (jury nullification) or heavy-handed (judicial review) legal devices to avoid conviction.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Sex Exceptionalism in Criminal Law Aya Gruber University of Colorado Law School Date Posted: 27 Jul 2022 [2nd last week]	312
2.	The Fallacy of Systemic Racism in the American Criminal Justice System Paul J. Larkin and GianCarlo Canaparo The Heritage Foundation and The Heritage Foundation Date Posted: 17 Aug 2022 [3rd last week]	170
3.	Vagueness and Federal-State Relations Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 06 Aug 2022 [4th last week]	141
4.	The Progressive Love Affair with the Carceral State (Book Review) Kate Levine Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 01 Sep 2022 [5th last week]	129
5.	Battle for Our Souls: A Psychological Justification for Corporate and Individual Liability for Organizational Misconduct Jennifer Arlen and Lewis A. Kornhauser New York University School of Law and New York University School of Law Date Posted: 19 Jul 2022 [6th last week]	104
6.	Demonizing Our Sisters Through Epistemic Oppression Yvette Butler University of Mississippi - School of Law Date Posted: 22 Jul 2022 [7th last week]	101
7.	Disentangling the Civil-Carceral State: An Abolitionist Framework for the Non-Criminal Response to Intimate Partner Violence Emily M. Poor University of Baltimore School of Law Date Posted: 17 Aug 2022 [8th last week]	100
8.	The Illusive Motive Requirement In Canada's Terrorism Offences: Defining and Distinguishing Ideology, Religion, and Politics Michael Nesbitt, Leah West and Amarnath Amarasingam University of Calgary, Faculty of Law, Carleton University - Norman Paterson School of International Affairs and Queen's University Date Posted: 04 Aug 2022 [new to top ten]	87
9.	Countermajoritarian Criminal Law Michael L. Smith University of Idaho College of Law Date Posted: 06 Aug 2022 [10th last week]	84
10.	How To Read a Corporation's Mind Mihailis Diamantis University of Iowa - College of Law Date Posted: 22 Jul 2022 [9th last week]	80

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Original Meaning of “Due Process of Law” in the Fifth Amendment Lawrence B. Solum and Max Crema University of Virginia School of Law and affiliation not provided to SSRN Date Posted: 10 May 2022	354
2.	Fourteenth Amendment Confrontation Evan D. Bernick Northern Illinois University - College of Law Date Posted: 06 Aug 2022	147
3.	A Theory for Evaluating Evidence Against the Standard of Proof Kevin M. Clermont Cornell Law School Date Posted: 20 Jul 2022	139
4.	The Progressive Love Affair with the Carceral State (Book Review) Kate Levine Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 01 Sep 2022	129
5.	Theorizing Corroboration Maggie Wittlin Fordham University School of Law Date Posted: 30 Jul 2022	94
6.	Beyond Binary Thinking: Addressing the Biases That Threaten the Progressive Prosecution Movement Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 06 May 2022	93
7.	McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride Josh Bowers University of Virginia School of Law Date Posted: 22 Jul 2022	93
8.	Fourth Amendment Notice in the Cloud Jesse Lieberfeld and Neil M. Richards Cordell Institute for Policy in Medicine & Law and Washington University School of Law Date Posted: 23 Aug 2022	92
9.	How Accurate are Rebuttable Presumptions of Pretrial Dangerousness? A Natural Experiment from New Mexico Cristopher Moore, Elise Ferguson and Paul Guerin Santa Fe Institute, affiliation not provided to SSRN and affiliation not provided to SSRN Date Posted: 09 Jul 2022	80
10.	'The World of Illusion Is at My Door': Why Panetti v. Quarterman Is a Legal Mirage Michael L. Perlin, Talia Roitberg Harmon and Haleigh Kubiniec New York Law School, Niagara University and Niagara University Date Posted: 01 Aug 2022	67

Perlin & Cucolo on Fetal Alcohol Syndrome

Michael L. Perlin and Heather Cucolo (New York Law School and New York Law School) have posted 'Take the Motherless Children off the Street': Fetal Alcohol Syndrome and the Criminal Justice System on SSRN. Here is the abstract:

 

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (FASD) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. Nor has there been any literature about the interplay between FASD-related issues and the legal school of thought known as therapeutic jurisprudence.

In this article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel. Next, we will discuss how the impact of FASD on the major fundamentals of criminal law and procedure, especially as it relates to questions of culpability. Under this broad umbrella of topics, we consider questions that may arise in the criminal trial process, such as those related to competency to stand trial (and, to a limited extent, other criminal competencies), the insanity defense, sentencing, and the death penalty. We look carefully at the way that courts all too often dismiss effectiveness-of-counsel claims in such cases, and the implications of this case law.

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Fehr on Remedying Unreasonable Delay

Colton Fehr (Thompson Rivers University, Faculty of Law) has posted Remedying Unreasonable Delay (Alberta Law Review, Vol. 60, Forthcoming 2023) on SSRN. Here is the abstract:

 

In R v Jordan, the Supreme Court of Canada adopted presumptive ceilings for determining whether the right to be tried within a reasonable time is violated. In so doing, the Court eschewed any balancing of individual and societal interests at the rights stage of analysis. Unfortunately, the Court did not simultaneously reconsider its prior determination that the only remedy for unreasonable delay is a stay of proceedings. As balancing individual and societal interests is fundamental to determining whether a stay is justified, the next logical step is to shift this balancing to the remedial stage of analysis. In so doing, the accused should typically be required to prove that the harm suffered irreparably undermines fair trial interests before proceedings are stayed in response to unreasonable delay. A stay of proceedings in these circumstances, however, ought not be restricted to ‘non-serious’ crimes. Where the harm relates to the accused’s liberty or security interests, other remedies should be granted. The Senate’s recent proposal to grant monetary rewards is feasible if supplemented with other remedies that limit the continued impact of delay on an accused’s liberty and security interests. I nevertheless maintain that using financial compensation to remedy the impact of delay on these interests ought to be approached with caution as it could encourage complacency towards delay. To counteract this incentive, stays of proceedings should remain available if the Crown uses this narrower remedial structure as a means to ‘buy time’ to conduct prosecutions.

Wang on China's Death Penalty Appellate Review Process

Tim (Xiaoming) Wang has posted CPR: Revitalizing China’s Death Penalty Appellate Review Process (Columbia Journal of Transnational Law, Vol. 60, No. 3, 2022) on SSRN. Here is the abstract:

Wrongfully convicted (and executed) capital defendants in China have long captured headlines and academic interest alike. Only recently has attention been turning towards China’s equally endemic problem of arbitrary death penalty sentences. This Note tackles this issue head on. The proposed remedy—comparative proportionality review—has a turmoiled and unsuccessful history in the United States, but can be retooled to improve the effectiveness of China’s death penalty review system. In addition, the current political climate and realities in China seem well-poised for adopting such a procedural remedy.

Heise & Nance on Race and the School-to-Prison Pipeline

Michael Heise and Jason P. Nance (Cornell Law School and SMU Dedman School of Law) has posted How Race Informs the School-To-Prison Pipeline: An Empirical Perspective on an Indirect Pathway on SSRN. Here is the abstract:

 

Background/Context: While empirical research consistently finds that increases in a school’s SRO/police presence correspond with increases in the rate of school referrals of student disciplinary incidents to law enforcement agencies, direct evidence of distributional concerns across various student subgroups is scant.

Focus of Study: This study considers whether student racial effects directly inform school decisions about whether to have an SRO/police presence and, in so doing, indirectly inform school law enforcement reporting activity.

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