CrimProf Blog

Hughes on Due Process and Insanity

Matthew Hughes has posted A New Argument for the Next Kahler v. Kansas: Due Process Demands more than Cognitive Incapacity (15 Liberty University Law Review 27 (2020)) on SSRN. Here is the abstract:

 

Despite the Supreme Court's recent decision in Kahler v. Kansas, there is a compelling argument that the Due Process Clause of the Fourteenth Amendment requires an insanity excuse in criminal cases that is broader than cognitive incapacity. Even though not every American jurisdiction has always provided a moral incapacity insanity excuse, history shows that the Anglo-American legal tradition has always required more than cognitive capacity as a prerequisite to criminal culpability. A survey of early English legal writers, along with authoritative English cases prior to the famous explanation of insanity in M'Naghten's Case in 1843, shows that England long employed both cognitive and moral incapacity as excuses from criminal liability. Aside from a few American jurisdictions employing the volitional incapacity excuse or the product-of-insanity test, the same was true of America from colonial times up through the twentieth century. Not until the 1950s did any American jurisdiction reduce the mental prerequisites to criminal liability to mere cognitive capacity, and by the beginning of the twenty-first century, only six states had done so. The Supreme Court should recognize that the American tradition and conscience requires an insanity excuse that is broader than the cognitive incapacity excuse.

Fehr on Familial DNA Searching

Colton Fehr (Simon Fraser University) has posted Familial DNA Searching and the Charter (In Robert Diab and Chris Hunt, eds. “Digital Privacy and the Charter of Rights and Freedoms” (Thompson Reuters, 2021 Forthcoming)) on SSRN. Here is the abstract:

 

Many criminal cases are unresolved despite police possessing evidence of the suspect’s deoxyribonucleic acid (DNA). Historically, searches for matches of DNA samples would be exhausted after running the suspect’s sample through the federal database collected pursuant to the DNA Identification Act. Although the Act permits officers to retrieve DNA samples from convicted criminals and search these databases for matches, it currently prohibits the tactic known as familial searching. In short, such searches tell police whether the suspect DNA sample is connected via familial status to anyone else in a DNA database. This can drastically narrow the pool of potential suspects, allowing police to resort to more traditional investigative methods to ultimately match the suspect’s DNA. Yet, with the expansion of DNA services to the public through websites such as Ancestory.com and 23andme, and open source DNA match sites such as GEDMatch and FamilyTreeDNA, the federal DNA database no longer provides the only means by which law enforcement may test DNA matches. Although data held by private entities will require prior judicial approval before disclosure will be permitted, open-source sites remain available to the public, including police. Following in the footsteps of police practice in the United States, Canadian police have recently begun to search open-source sites to provide leads in cold cases. This development prompts the question of whether and, if so, how such searches ought to be regulated by section 8 of the Canadian Charter of Rights and Freedoms.

Kitai-Sangero on Self-Incrimination, Physical Exams, and Documents

Rinat Kitai-Sangero (Zefat Academic College) has posted The Protection of Free Choice and the Right to Passivity: Applying the Privilege against Self-Incrimination to Physical Examinations and Documents' Submission (William & Mary Bill of Rights Journal, Vol. 29, 2020) on SSRN. Here is the abstract:

 

The article addresses the question of whether the privilege against self-incrimination should cover physical examinations as well as the obligation to submit documents. This question requires a serious examination of the justifications underlying the privilege against self-incrimination and is of particular relevance in the current age of technological progress that expand the powers assigned to law-enforcement agencies to access knowledge and thoughts stored in individuals' minds. After addressing the comparative law regarding the applicability of the privilege against self-incrimination to physical examinations and to the obligation to submit documents and discussing key justifications for the privilege against self-incrimination, dividing them into epistemic and non-epistemic, and examining in light of them whether there is a valid distinction between compelled speech and compelled physical examinations, and documents' submission, the article concludes that extending the privilege against self-incrimination to physical examinations and to the obligation to submit documents is necessary to protect accused persons' free will to choose their defense strategy given the burden imposed on the state to prove guilt as a condition for securing convictions.

Kleck on The Effect of Right-to-Carry Laws on Crime Rates

Gary Kleck (Florida State University - College of Criminology and Criminal Justice) has posted The Effect of Right-to-Carry Laws on Crime Rates: A Critique of the Research of Donohue et al. on SSRN. Here is the abstract:

 

John Donohue and his colleagues assessed the impact of "right-to-carry" (RTC) laws on crime rates. These laws make it easier to get a carry permit. Donohue et al. claim that their analysis indicates that, contrary to what nearly all other researchers have found, these laws increase violent crime. This paper presents a critical analysis of the research by Donohue et al., and shows that their conclusions are unwarranted.

Conklin on Rakoff's "Why the Innocent Plead Guilty . . ."

Michael Conklin (Angelo State University) has posted Why the Innocent Plead Guilty and the Guilty Go Free: A Critical Analysis of Judge Rakoff’s Book on SSRN. Here is the abstract:

 

This is a review of Jed S. Rakoff’s new book Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System. While the book has its merits, this review primarily focuses on critiques. These critiques cover the topics of the difference between innocence and wrongful conviction / exoneration, the death penalty, race, and plea bargaining. This review concludes by addressing the problematic breadth of the book and an unfortunate absence of citations.

Hottot on Excessive Fines after Timbs

Wesley Hottot (Institute for Justice) has posted What Is An Excessive Fine? Seven Questions to Ask After Timbs (Alabama Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This Article explains how Timbs v. Indiana does more than hold that the Eighth Amendment’s Excessive Fines Clause applies to state and local authorities. Timbs also gives definition to those “excessive fines” the Constitution guarantees “shall not be . . . imposed.”

This definition emerges when Timbs is read alongside three other decisions: (1) Austin v. United States—the Supreme Court’s decision holding that forfeitures are “fines” within the meaning of the Excessive Fines Clause; (2) United States v. Bajakajian—the only other case in which the Supreme Court has applied the Excessive Fines Clause; and (3) the Indiana Supreme Court’s decision on remand in Timbs, which surveys all available case law and adopts a helpful framework for determining excessiveness. Timbs, Austin, and Bajakajian, when combined with examples from federal circuit courts and state high courts, represent a cogent standard for excessiveness. This emerging standard can be summarized using the familiar “five W’s (and one H).”

Continue reading

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Restoring the Historical Rule of Lenity as a Canon Shon Hopwood Georgetown University Law Center Date Posted: 18 Mar 2021	182
2.	Moral Intuitions and Moral Nativism John Mikhail Georgetown University Law Center Date Posted: 15 Dec 2020 [2nd last week]	133
3.	A Framework Theory of Punishment Tatjana Hörnle Max Planck Institute for the Study of Crime, Security and Law Date Posted: 02 Mar 2021 [4th last week]	99
4.	Domestic Terrorism, Attack on the U.S. Capitol, and the Second Impeachment of Donald Trump Lawrence J. Trautman Prairie View A&M University - College of Business Date Posted: 02 Apr 2021 [new to top ten]	96
5.	Constitutional Liquidation, Surety Laws, and the Right to Bear Arms Robert Leider George Mason University - Antonin Scalia Law School, Faculty Date Posted: 04 Nov 2020	84
6.	The Law on Police Use of Force in the United States Brandon L. Garrett and Christopher Slobogin Duke University School of Law and Vanderbilt University - Law School Date Posted: 23 Feb 2021	83
7.	Limiting Consent in Criminal Law: DPP v Brown [2018] IESC 67 David Prendergast School of Law, Trinity College Dublin Date Posted: 22 Mar 2021 [new to top ten]	72
8.	White Collar Crime: Cases, Material, and Problems - Chapter 1 (Overview of White Collar Crime) Kelly Strader, John P. Anderson and Mihailis Diamantis Southwestern Law School, Mississippi College School of Law and University of Iowa - College of Law Date Posted: 02 Feb 2021	68
9.	A TJ Approach to Mental Disability Rights Research: On Sexual Autonomy and Sexual Offending Michael L. Perlin, Heather Cucolo and Alison Lynch New York Law School, New York Law School and Mental Disability Law & Policy Associates Date Posted: 11 Feb 2021	64
10.	The End of Comparative Qualified Immunity Colin Miller University of South Carolina School of Law Date Posted: 02 Mar 2021	64

Next week's criminal law/procedure arguments

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

Tuesday

• U.S. v. Gary: Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.
• Greer v. U.S.: Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Pretrial Detention and the Value of Liberty Megan T. Stevenson and Sandra G. Mayson University of Virginia School of Law and University of Georgia School of Law Date Posted: 19 Feb 2021	807
2.	Black on Black Representation Alexis Hoag Columbia Law School Date Posted: 19 Mar 2021	305
3.	Viral Injustice Brandon L. Garrett and Lee Kovarsky Duke University School of Law and University of Texas School of Law Date Posted: 23 Feb 2021 [4th last week]	234
4.	Low-Ball Rural Defense Maybell Romero Northern Illinois University College of Law Date Posted: 11 Mar 2021 [8th last week]	144
5.	The Value of Remorse as a 'Therapeutic Tool' for Probation Officers in Sentencing Colleen M. Berryessa and Ashley Balavender Rutgers, The State University of New Jersey - School of Criminal Justice and Rutgers, The State University of New Jersey - School of Criminal Justice Date Posted: 15 Feb 2021 [9th last week]	133
6.	Rock and Hard Place Arguments Jareb A. Gleckel and Grace Brosofsky Cornell University - Law School and Independent Date Posted: 22 Feb 2021 [10th last week]	127
7.	'My Bewildering Brain Toils in Vain': Traumatic Brain Injury, the Criminal Trial Process, and the Case of Lisa Montgomery Alison Lynch, Michael L. Perlin and Heather Cucolo Mental Disability Law & Policy Associates, New York Law School and New York Law School Date Posted: 14 Feb 2021 [new to top ten]	117
8.	Trump v. New York, Clapper, and . . . the Fourth Amendment? How Inconsistent Doctrines are Under-Protecting Privacy Jareb A. Gleckel and Grace Brosofsky Cornell University - Law School and Independent Date Posted: 22 Feb 2021 [new to top ten]	108
9.	Dr. Richard Leo Report on Sedley Alley Richard A. Leo University of San Francisco Date Posted: 25 Feb 2021 [new to top ten]	108
10.	The Challenges of Forensic Genealogy: Dirty Data, Electronic Evidence, and Privacy Concerns Divya Ramjee and Katelyn N Ringrose American University (Washington, DC) and affiliation not provided to SSRN Date Posted: 28 Mar 2021 [new to top ten]

 

 

Ahmed on The Right to Counsel in a Neoliberal Age

Zohra Ahmed (Cornell Law School) has posted an abstract of The Right to Counsel in a Neoliberal Age (UCLA Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in society at large. This article offers a modest corrective to this tendency. By studying the Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to how the Court has defined and mobilized “choice” and “autonomy,” a more complex picture emerges. I argue the Court’s turn to choice mirrors one made by policymakers who, starting in the 1970s, embraced a new, neoliberal paradigm for public administration.

Continue reading

Fissell on Criminal Law Localism

Brenner Fissell (Hofstra University - Maurice A. Deane School of Law) has posted Against Criminal Law Localism (Maryland Law Review, Forthcoming (2022)) on SSRN. Here is the abstract:

 

Scholars have long called for greater localism in criminal justice as a response to the crises of racialized mass incarceration and over-policing. A downward shift of power to smaller local governments is thought to maximize an array of values, including liberty, equality, and efficient experimentation, and also to allow for criminal justice to better reflect societal viewpoints in policies. But no criminal “justice” localists have recognized that a critical distinction exists between the devolution of power over criminal “law” and devolution of power over criminal “procedure.” Because of foundational features of local government law, localities have no authority to decriminalize conduct criminalized by a state—their option is only to add more offenses to the existing state code. Increased localism in criminal law, then, functions as a one-way ratchet for more misdemeanor criminalization and all its attendant ills: incarceration, crippling fines and fees, and the authorization of more policing, surveillance, and managerial social control of marginalized groups. Criminal “law” localism will counteract the benefits that criminal “justice” localism is expected to advance. Pragmatic criminal justice localists should therefore narrow their claim, excising substantive criminal law from their devolutionary program.

Berryessa on "Second Chance" Mechanisms and the War on Drugs

Colleen M. Berryessa (Rutgers, The State University of New Jersey - School of Criminal Justice) has posted 'Second Chance' Mechanisms as a First Step to Ending the War on Drugs ((2021). American Journal of Bioethics 21(4): 54-56) on SSRN. Here is the abstract:

 

This comment discusses how existing legal strategies can be used to help bring immediate relief to individuals serving long-term prison sentences for drug-related crimes by creating or expanding opportunities for their early release. These strategies, which currently exist at both state and federal jurisdictions, are conceptualized as mechanisms that can provide “second chances” to drug offenders serving sentences that are often unnecessary, excessive, and out of line with societal views on sentencing. Such strategies are, arguably, one of our best first steps to ending the “war on drugs.”

Richmond on Biometric Data Retention

Karen McGregor Richmond (iCourts - Danish National Research Foundation Centre of Excellence in International Law) has posted Human Rights Compatibility of Biometric Data Retention on Shared UK Databases on SSRN. Here is the abstract:

 

Between 2018 and 2020 the UK National DNA Database reported 53,900 matches between subject profiles and crime samples, including 1331 for homicide, and 1309 for rape. The average match rate between crime samples, and subject profiles on the database, was 66.5%. Similarly, the UK Ident1 fingerprint database reports match rates in the order of 85,000 identifications per year. Such figures demonstrate the valuable contribution that biometric databases make to the prevention and prosecution of crime. However, all such database samples require to be held in conformity with a legal framework regulating the inclusion, use, and retention, of biometric material and data, in accordance with overarching human rights obligations. Furthermore, those responsible for maintaining biometric databases must offer a meaningful process for review. The possibility of review is an essential component of biometric regulation, given that the databases hold diverse classes of data, from samples linked to serious crime and national security concerns, to those taken from suspects arrested for minor offences, but not subsequently convicted. In order to meet the requirements for regulation and review, the three legal jurisdictions of the UK have created (or are creating) biometric commissioners to oversee the retention of samples. These commissions are intended to provide a legal safeguard, ensuring retention and use of biometric data, in compliance with the ECHR. However, research has revealed a population of data subjects which falls outwith the protective measures envisaged by domestic retention frameworks.

Continue reading

Funk on Self Defense

T. Markus Funk (University of Colorado School of Law) has posted Cracking Self-Defense's Intractable 'Difficult Cases' (Nebraska Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The “ancient right” of self-defense is among the handful of criminal law areas that has received substantial academic (and increasingly public) attention, and deservedly so, given the foundational role it plays in criminal justice systems the world over. The current debate about over-policing, violence, and self-defense has vividly brought to the forefront the challenges inherent in setting boundaries between the state’s claimed “monopoly on force” and the individual’s right to deploy self-preferential violence against a purported attacker. But, as this Article points out, by overlooking the role values and value judgments play in guiding “just” self-defense outcomes, the bedrock analysis providing the starting point for this debate has been undermined by a lack of moral and analytical coherence.

Continue reading

Weiss & Joy on Sex in Geriatric Care Facilities

Kenneth J. Weiss and Michelle Joy (University of Pennsylvania and University of Pennsylvania - Department of Psychology) have posted Sex in Geriatric Care Facilities: Sexual Violence or Self-Determination? (JSM Sexual Med 4(1): 1024) on SSRN. Here is the abstract:

 

Maintaining intimacy is recognized as an integral aspect of aging. Benefits of intimate touch can be appreciated after cognitive decline in other areas, which can be a significant quality of life issue for couples. While interest in sexual activity varies among older adults, whether the capacity to consent to intimacy is preserved in individuals with neurocognitive impairment is a salient issue. While consent may not be problematic among couples living in their own homes, care facilities must be more protective. As a rule, sexual assault exists where there is no consent, placing the nonimpaired participant at risk for receiving criminal charges. In this article, we examine the tension between concepts of privacy and self-determination on one hand and legal constraints on the other.

Continue reading

Meyn on Invisible Rules on Use of Force

Ion Meyn (University of Wisconsin Law School) has posted The Invisible Rules That Govern Use of Force (Wisconsin Law Review (Forthcoming 2021)) on SSRN. Here is the abstract:

 

Police departments reject the idea that use of force can be governed by rules. Under this rule-resistant view, officers retain broad discretion to respond to ever-changing conditions in the field. Despite the prevalence of this view, the Article finds that behind closed doors departments tend to construct hard and fast rules that limit officer discretion.

This disconnect—between the rule-resistant narrative and the rule-bound reality—has important implications for use-of-force reform. Acceptance of the rule-resistant narrative tends to deflect public attempts to exert influence over use-of-force practices, limiting community input to an insistence on aspirational standards. At the same time, departments are internally adopting hard and fast rules, some of which require officers to engage in violence. If communities had access to these rules, they could closely interrogate, disagree with, and amend them. Ultimately, departmental efforts to convince the public that it is impossible to do what the department actually does are at the center of a struggle over who wields control over use-of-force reform—the police or the communities they serve.

Continue reading

Hyatt et al. on Norwegian and American Prison Cells

Jordan Hyatt, Synøve N. Andersen and Steven L. Chanenson (Drexel University, University of Oslo and Villanova University School of Law) have posted The Prison Cell (pp 45-70, chapter in book Prison Cells as a Grounded Embodiment of Penal Ideologies: A Norwegian-American Comparison) on SSRN. Here is the abstract:

 

Prison cells and their carceral design provide a perspective on the prevailing ideological and pragmatic goals within correctional systems, especially with regard to the needs and rights of those incarcerated. Elements of the cell can therefore form a foundation for comparative analyses of correctional philosophy. This chapter explores the distinct penal ideologies of Norway and the United States, as represented by Pennsylvania, through the lens of cells in a newly constructed prison in each jurisdiction. A consideration of the constituent elements and use of prison cells highlights the official focus on utilitarian punishment goals like reintegration and "normality" through environmental-based rehabilitation in the Norwegian context, and in Pennsylvania, the primacy of efficiency and other non-utilitarian correctional goals. ultimately, these cells reflect their respective society's correctional priorities at the time they were built.

Stern on Incorporation Doctrine

James Y. Stern (William & Mary Law School) has posted First Amendment Lochnerism & the Origins of the Incorporation Doctrine (University of Illinois Law Review, Vol. 2020, No. 5, 1501) on SSRN. Here is the abstract;

 

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine’s justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton’s recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as having three basic components, of which First Amendment incorporation predominated. It goes on to show how First Amendment incorporation drew in important ways from existing doctrine, including important strands of “Lochnerian” jurisprudence, and was structured in a way that in turn facilitated subsequent incorporation of criminal procedure protections. Finally, it notes that in its critical beginning moments, incorporation decisions did not consider, much less adjudicate, the kinds of issues that are today central to discussions of judicial federalism.

Donelson on Katz Circularity

Raff Donelson (Penn State Dickinson Law) has posted The Real Problem with Katz Circularity (St. Louis University Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

The Fourth Amendment protects people against "unreasonable searches" by police. To operationalize this protection, courts must have a workable definition of a search. Since 1967, the Supreme Court has used the two-step Katz test as a primary measure of when a search has occurred. Under Katz, a court will find that something has been subject to search when (1) the individual in question has a subjective expectation of privacy in that thing and (2) such an expectation of privacy would be reasonable. From early on, commentators have decried the Katz test as circular and have urged courts to adopt something else. This Essay explains what the circularity worry really amounts to: the worry is about courts using improperly reduced expectations of privacy as a reason to withhold Fourth Amendment protection. This worry is much broader than most commentators have seen, and this broader framing allows one to deflect recent concerns that Katz circularity (more narrowly construed) is a myth. With the ‘circularity’ worry properly understood, the Essay offers a way to deal with it: courts could simply drop Step One of Katz.

Simester on Crime, Responsibility, Culpability, and Wrongdoing

A.P. Simester (National University of Singapore (NUS) - Faculty of Law) has posted Crime, Responsibility, Culpability, and Wrongdoing (AP Simester, Fundamentals of Criminal Law: Responsibility, Culpability, and Wrongdoing (Oxford University Press, 2021)) on SSRN. Here is the abstract:

 

This chapter provides a theoretical overview of criminal law, claiming that it has multiple functions. Among other things, the criminal law operates to prevent certain kinds of wrongs, and to punish them when they occur. Those functions are compatible; but they are often thought to be in tension. Whether preventive, interrogative, or punitive, all parts of the criminal justice system need justification. The chapter then briefly introduces at five foundational principles for criminal law: culpability, legitimate enactment, moral responsibility, wrongdoing, and ascriptive responsibility. Culpability is served by moral responsibility, and it is entwined with wrongdoing: but the latter principles, and the doctrines they govern, are independently significant. The principle of ascriptive responsibility, on the other hand, is related more closely to wrongdoing and legitimate enactment than to culpability per se. Its primary function is to moderate the state’s generic prohibition by identifying those defendants who fall within its scope. As such, it is primarily a criminalization principle.