CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	AI-Assisted Police Reports and the Challenge of Generative Suspicion Andrew Guthrie Ferguson American University Washington College of Law Date Posted: 20 Aug 2024	489
2.	Loper Bright and the Great Writ: Will the New Constitutionalists End "Treason to the Constitution," Restore the Judicial Power, and Make the Law of the Land Supreme Again? [Forthcoming in Columbia Human Rights Law Review, 2024] James S. Liebman and Anthony Amsterdam Columbia University - Law School and New York University School of Law Date Posted: 11 Jul 2024	323
3.	Prosecutor Transparency Project: Racial Disparities Study (Washtenaw County, Michigan) Grady Bridges and J.J. Prescott Independent and University of Michigan Law School Date Posted: 31 Dec 2023	308
4.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	195
5.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024	89
6.	MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT W. David Ball Santa Clara School of Law Date Posted: 08 Aug 2024 [7th last week]	77
7.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [6th last week]	76
8.	Urgent Issues and Prospects on Investigative Interviews with Children and Adolescents Victoria Talwar, Angela Crossman, Stephanie Block, Sonja Brubacher, Rachel Dianiska, Ana Karen Espinosa Becerra, Gail S. Goodman, Michael Lamb, Kamala London, David La Rooy, more... McGill University, City University of New York (CUNY) - John Jay College, University of Massachusetts Lowell, Griffith University, University of California, Irvine, University of Ottawa, University of California, Davis, University of Cambridge, University of Toledo, University of Otago Date Posted: 06 Aug 2024	68
9.	The Victims' Rights Mismatch Lee Kovarsky University of Texas at Austin, School of Law Date Posted: 12 Aug 2024	53
10.	A Lifeline During Custodial Interrogations? The Right to Counsel and Reflections on R. v. Dussault and R. v. Lafrance Amar Khoday University of Manitoba - Faculty of Law Date Posted: 03 Jul 2024	52

Byars on Recidivist Organizational Offenders

Kaleb Byars (Mercer University School of Law) has posted Recidivist Organizational Offenders and the Organizational Sentencing Guidelines on SSRN. Here is the abstract:

 

Despite recent Congressional hearings and public attention, the question of how to fairly and efficiently punish recidivist organizational offenders remains unresolved. Any discussion regarding the most optimal legal response to recidivist organizational crime is incomplete without a solution accounting for the use of organizational deferred prosecution agreements ("DPAs") and non-prosecution agreements ("NPAs"). These tools allow criminal defendants to resolve charges without sustaining convictions that attach to the defendants' criminal records, and they are used often in the organizational context.

Continue reading

"Can the city of Savannah fine or jail people for leaving guns in unlocked cars? A judge weighs in"

From AP, via NACDL's news update:

Savannah’s mayor and city council voted unanimously in April to outlaw keeping firearms in unlocked vehicles, with maximum penalties of a $1,000 fine and 30 days in jail. They said the law would make it harder for criminals to steal guns, and cited local police statistics showing more than 200 guns reported stolen last year from vehicles that weren’t locked.

. . . .

Chatham County Superior Court Judge Benjamin Karpf didn’t rule Wednesday on Belt’s motion to halt enforcement of the Savannah ordinance while considering his underlying lawsuit that seeks to have it thrown out permanently.

Monroe said Savannah’s ordinance should be voided because it violates a state law prohibiting local governments from regulating “the possession, ownership, transport, (or) carrying” of firearms.

Leshem on The Informational Role of Elevated Standards of Proof

Shmuel Leshem has posted The Informational Role of an Elevated Standard of Proof on SSRN. Here is the abstract:

This paper shows that an exacting standard of proof in criminal proceedings aligns prosecutors'information-gathering incentives with society's preferences. A conviction-oriented prosecutor must collect a random evidentiary signal before deciding whether to press charges against a suspect. Elevating the standard of proof above society's ex post optimal standard induces the prosecutor to collect a more informative signal, which reduces society's ex ante expected costs of errors. A higher standard of proof not only reduces the incidence of wrongful convictions, but may also increase the rate of rightful convictions.

Franks on Non-consensual Pornography

Mary Anne Franks (George Washington University - Law School) has posted an abstract of The Criminalization of Non-consensual Pornography in the United States on SSRN. Here is the abstract:

 

The legal, technological, and social landscape of nonconsensual pornography in the United States has changed dramatically over the last decade. The number of U.S. states criminalizing the abuse as increased from three to 48; major social media and internet companies have banned nonconsensual pornography from their platforms and services; and nonconsensual pornography, now also commonly referred to ‘nonconsensual intimate imagery’ or ‘image-based sexual abuse’, is widely recognized as a form of abuse. This transformation is largely attributable to the efforts of courageous victims of this abuse and the civil society advocacy organizations that support them, in particular Dr. Holly Jacobs and the organization she founded in 2013, the Cyber Civil Rights Initiative (CCRI). But challenges remain. Because no federal law prohibiting this abuse has been enacted, and the definition and classification of nonconsensual pornography varies by jurisdiction, victims are left with an inconsistent and ineffective legal patchwork for this devastating and frequently multijurisdictional crime.

Bland & Brooks on Criminalization of Sex Work

Sean E. Bland and Ben Brooks (Santa Clara University School of Law and Whitman-Walker Health) have posted Improving Laws and Policies to Protect Sex Workers and Promote Health and Wellbeing: A Report on Criminalization of Sex Work in the District of Columbia on SSRN. Here is the abstract:

The District of Columbia has made significant investments in reducing violence and improving community health. DC implemented violence interruption programs and accountability mechanisms, reformed policing and trained in cultural competency, and increased access to health insurance for vulnerable communities of immigrants and homeless people. Despite their continued prioritization, violence and infectious disease continue to be major public health challenges, especially for DC’s Black and LGBTQ communities. There is considerable evidence from public health researchers that criminalization of sex work contributes to community violence, propagates crime, blocks access to public health resources, is an ineffective deterrent to participation in sex work, and is deeply harmful to sex workers.

Continue reading

"California Voters Have Some Choices on Crime in November"

Michael Rushford has this post at Crime & Consequences. In part:

An initiative addressing theft and drug abuse has qualified for California’s November 5 ballot, along with a ballot measure passed by the Legislature which increases the rights of prison inmates.

Proposition 36, is sponsored by the California District Attorneys Association and is supported by retailers, victims’ groups and most state law enforcement professionals. The measure changes several provisions of California Proposition 47, which converted thefts of $950 or less to misdemeanors, along with drug sales or possession, even if the offender has multiple priors. If adopted, Proposition 36 would strengthen penalties for habitual shoplifters and thieves, allowing an offender convicted of a third theft valued at less than $950 to be charged with a felony and sentenced to up to three years in state prison, depending on his criminal record.

 

"Should police be able to interrogate kids alone? A growing number of states say no"

From NPR, via NADCL's news update:

That day, he didn’t ask for a lawyer, and he did talk. Studies show nearly all juveniles make the same choice: As many as 90 percent waive their Miranda rights. Yet legal experts say children and teenagers don’t understand the consequences of doing so.

Now, some states are working to fix that. In the last three years, at least four states — including California, Maryland, New Jersey and Washington — have passed laws banning police from interrogating children until that child has spoken to a lawyer. Illinois has introduced a bill broadening its protections for juveniles questioned by police, and other states – including New York and Minnesota – have introduced similar bills.

Geistfeld on Scarce Compensatory Resources and the Tort/Crime Relationship

Mark Geistfeld (New York University School of Law) has posted Tort Law in a World of Scarce Compensatory Resources (123 MICHIGAN LAW REVIEW (forthcoming 2025)) on SSRN. Here is the abstract:

 

A number of large corporations facing extensive tort liabilities have gone into bankruptcy, forcing tort claimants to accept pennies on the dollar in satisfaction of their claims. Bankruptcy painfully illustrates the social fact that the compensatory properties of tort law depend on the availability of compensatory resources. Although this feature of tort law is self-evident, no one has adequately analyzed whether it matters for substantive tort doctrine, and if so, how.

. . . . 

 

Accounting for the availability of compensatory resources reveals normative properties of substantive tort law that are often quite different from the ones modern tort theories depict, including the relation between tort law and criminal law and the vital role of deterrence in a rights-based tort system. An adequate account of tort law must comprehend how the scarcity of compensatory resources alters substantive tort doctrine in principled ways.

"Police in a suburban New York county have made their first arrest under a new law banning face masks"

From AP, via NACDL's news update:

Police in the suburbs of New York City made the first arrest under a new local law banning face masks, officials announced Tuesday.

. . . .

The New York Civil Liberties Union, which has criticized the new law, repeated its warning that the mask ban is “ripe for selective enforcement by a police department with a history of aggression and discrimination.”

Disability Rights of New York, a group that advocates for people with disabilities, filed a legal challenge last week arguing that the mask law is unconstitutional and discriminates against people with disabilities.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Stopping Scams Against Consumers: Roadmap for a National Strategy Nick Bourke Independent Date Posted: 24 Jul 2024	213
2.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	188
3.	Abolish Conspiracy Evan D. Bernick Northern Illinois University - College of Law Date Posted: 07 Aug 2024	148
4.	Rights, Reasons, and Culpability in Tort Law and Criminal Law Gregory Antill Columbia Law School Date Posted: 27 Jun 2024	139
5.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024	88
6.	Rethinking the Role of Intentional Wrongdoing in Criminal Law Gregory Antill Columbia Law School Date Posted: 31 Jul 2024 [8th last week]	85
7.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [6th last week]	76
8.	MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT W. David Ball Santa Clara School of Law Date Posted: 08 Aug 2024 [new to top ten]	71
9.	A Specious Form of Judicial Restraint Nelson Lund George Mason University - Antonin Scalia Law School Date Posted: 02 Jul 2024	68
10.	From Visibility to Shadows: The Impact of Police Discretion on Prostitution in Response to Legal Changes Yutian An, Yingjie Fan, Xuancheng Qian and Leo Yang Yang Harvard University - Harvard Law School, Princeton University, Princeton University and Stanford University - Centre on China’s Economy and Institutions Date Posted: 28 Jun 2024	65

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	AI-Assisted Police Reports and the Challenge of Generative Suspicion Andrew Guthrie Ferguson American University Washington College of Law Date Posted: 20 Aug 2024 [5th last week]	435
2.	Loper Bright and the Great Writ: Will the New Constitutionalists End "Treason to the Constitution," Restore the Judicial Power, and Make the Law of the Land Supreme Again? [Forthcoming in Columbia Human Rights Law Review, 2024] James S. Liebman and Anthony Amsterdam Columbia University - Law School and New York University School of Law Date Posted: 11 Jul 2024 [4th last week]	311
3.	Prosecutor Transparency Project: Racial Disparities Study (Washtenaw County, Michigan) Grady Bridges and J.J. Prescott Independent and University of Michigan Law School Date Posted: 31 Dec 2023	307
4.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024 [6th last week]	188
5.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024 [8th last week]	88
6.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [9th last week]	76
7.	MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT W. David Ball Santa Clara School of Law Date Posted: 08 Aug 2024 [new to top ten]	71
8.	Urgent Issues and Prospects on Investigative Interviews with Children and Adolescents Victoria Talwar, Angela Crossman, Stephanie Block, Sonja Brubacher, Rachel Dianiska, Ana Karen Espinosa Becerra, Gail S. Goodman, Michael Lamb, Kamala London, David La Rooy, more... McGill University, City University of New York (CUNY) - John Jay College, University of Massachusetts Lowell, Griffith University, University of California, Irvine, University of Ottawa, University of California, Davis, University of Cambridge, University of Toledo, University of Otago Date Posted: 06 Aug 2024 [new to top ten]	57
9.	The Victims' Rights Mismatch Lee Kovarsky University of Texas at Austin, School of Law Date Posted: 12 Aug 2024 [new to top ten]	51
10.	A Lifeline During Custodial Interrogations? The Right to Counsel and Reflections on R. v. Dussault and R. v. Lafrance Amar Khoday University of Manitoba - Faculty of Law Date Posted: 03 Jul 2024 [new to top ten]	50

Pyle et al. on Parking Ticket Enforcement

Benjamin Pyle, James Reeves, and Elizabeth Luh (Boston University - School of Law, University of Michigan at Ann Arbor and University of Houston - Department of Economics) have posted Agency Incentives and Disparate Revenue Collection: Evidence from Chicago Parking Tickets on SSRN. Here is the abstract:

 

We leverage a sharp 2012 parking fine increase for failing to purchase vehicle registration to examine disparate ticketing patterns across enforcement agencies in Chicago. Using an event-study framework, we find that Chicago police increased their enforcement of car registration non-compliance in Black relative to non-Black neighborhoods, with no observed disparate response for non-police enforcement agencies. This disparity is unexplained by differences in non-compliance and is instead driven by departmental revenue incentives and lower marginal search costs in Black neighborhoods. Disparate enforcement also exacerbated existing gaps in financial instability, including increased rates of ticket non-payment and bankruptcy filings in Black neighborhoods.

"US police use force on 300,000 people a year, with numbers rising since George Floyd: ‘relentless violence’"

From The Guardian, via NACDL's news update:

Mapping Police Violence, a non-profit research group that tracks killings by US police, launched a new database, policedata.org, on Wednesday cataloging non-fatal incidents of police use of force, including stun guns, chemical sprays, K9 dog attacks, neck restraints, beanbags and baton strikes.

The database features incidents from 2017 through 2022, compiled from public records requests in every state. The findings, the group says, suggest that despite widespread protests against police brutality following the murder of George Floyd in 2020, overall use of force has remained steady since then – and in many jurisdictions, has increased.

 

The data builds on past reports that found US police kill roughly 1,200 people each year, or three people a day, a death toll that has crept up every year and dramatically exceeds rates in comparable nations. The nonfatal force statistics and accompanying report illustrate how the killings are just a small fraction of broader police violence and injuries caused by law enforcement.

Segate on Biology and Criminal Law

Riccardo Vecellio Segate (University of Groningen - Faculty of Economics and Business) has posted Exposing, Reversing, and Inheriting Crimes as Traumas from the Neurosciences to Epigenetics: Why Criminal Law Cannot Yet Afford A(nother) Biology-induced Overhaul

Criminal Justice Ethics on SSRN. Here is the abstract:

 

In criminal proceedings, offenders are sentenced based on doctrines of culpability and punishment that theorize why they are guilty and why they should be punished. Throughout human history, these doctrines have largely been grounded in legal-policy constructions around retribution, safety, deterrence, and closure, mostly derived from folk psychology, natural philosophy, sociocultural expectations, public-order narratives, and common sense. On these premises, justice systems have long been designed to account for crimes and their underlying intent, with experience and probabilistic assumptions shaping theoretical discourses on the nature of crimes and offenders’ punishability. As scientific discoveries, inventions, and methodologies progressively developed to refine such doctrines and displace long-held assumptions, criminal courtrooms have increasingly witnessed counsels and judges relying on scientific evidence to submit, dispute, or validate claims. For instance, over the last century, criminal courtrooms have selectively admitted neuroscientific models, exams, and insights claiming to revolutionize our understanding of who is culpable and deserving of punishment. Most recently, advancements in epigenetics have promised even more profound challenges to long-standing criminal law doctrines. This article examines the reasons reversibility and inheritability of epigenetic markers might warrant revising culpability and punishment and concludes that epigenetic findings are not yet robust enough to justify such revisions.

"5 Things to Know About How Survivors Get Incarcerated for Their Abusers’ Crimes"

From The Marshall Project, via NACDL's news update:

Every state in the U.S. has a version of “accomplice liability” — laws that allow someone to be punished for assisting or supporting another person who commits a crime, in some cases, even if that participation is under the threat of violence.

A recent Marshall Project investigation found survivors of domestic and sexualized violence are particularly vulnerable to prosecution under these laws because of the control their abusers hold over them.

Snowden et al. on Race and Public Safety Discourse

William C Snowden, Verónica Caridad Rabelo, Oscar Jerome Stewart, and Sarah Fathallah (Loyola University New Orleans College of Law, San Francisco State University, University of San Francisco and Pratt Institute) have posted When Safety for You Means Danger for Me: The Racial Politics of Carceral Public Safety Discourse on SSRN. Here is the abstract:

 

Safety is a human right and universal need, and yet we as researchers and practitioners often take for granted the conditions that help people feel safe. In this conceptual review, we focus on factors that contribute to people’s sense of safety in service of understanding how, when, and where people feel safe. Moreover, we consider how race, power, and privilege shape people’s sense of safety and danger. In doing so, we highlight how public safety is not an objective or static reality but rather a political project that reflects dominant ideologies and serves state interests. We begin this conceptual review with a discussion of how public safety is a social construct whose meaning varies across time, space, and place. Next, we discuss three dominant ideologies that are embedded within collective public safety discourse: permanent bad guy syndrome, the victimization-fear paradox, and the politics of ideal victimhood.

Continue reading

Nelson on Article III Standing and "Victimless" Crimes

Ryan H. Nelson (South Texas College of Law Houston) has posted Article III Standing in Federal Prosecutions of "Victimless Crimes" (92 Fordham L. Rev. Online ___ (forthcoming 2024)) on SSRN. Here is the abstract:

 

Plaintiffs in federal court bear the burden of proving their standing since Article III permits inferior federal courts to exercise jurisdiction over "Cases" and "Controversies" alone. From these constitutional terms of art--"Cases" and "Controversies"--we derive the familiar case-or-controversy requirements of standing, including injury. Yet, these terms of art authorize inferior federal courts' jurisdiction over civil and criminal actions alike, but federal prosecutors have never been similarly burdened with proving the standing of the United States, including that the United States has suffered injury. This article examines that lapse and contends that Article III compels federal prosecutors to shoulder the burden of proving that the United States has been injured-a burden easily carried in all but federal prosecutions of so-called "victimless crimes" where the United States has not been, and never will be, harmed.

Wright & Levine on Legislatures and Localized Resentencing

Ronald F. Wright and Kay L. Levine (Wake Forest University - School of Law and Emory University School of Law) have posted Legislatures and Localized Resentencing on SSRN. Here is the abstract:

 

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level. 

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has the authority both to decide whether to participate in the program and to select individual cases for review. Through original interviews and review of publicly available data, we highlight how this practice is working in California and Washington State. We observe that when local prosecutors exercise their discretion under the new statute, they necessarily produce uneven results around the state, as some counties embrace resentencing practices, some use their power sparingly, and others leave it untouched.

Continue reading

Bland on Decriminalizing Disease

Sean E. Bland (Santa Clara University School of Law) has posted Decriminalizing Disease: A Health Justice Approach to Infectious Diseases and Criminal Law (Arkansas Law Review, Forthcoming) on SSRN. Here is the abstract:

For more than a century, the United States has used criminal law to respond to infectious diseases. From the start, this response was not grounded in evidence. Not only is criminalization ineffective at preventing transmission, it often is counter-productive to public health interventions and is selectively enforced against marginalized groups. The story of the criminalization of HIV provides a powerful indictment of this response. This criminalization emerged in a climate of fear and moral panic and in the absence of effective treatment, and yet it continues today. Without a full reckoning with the harms caused by the criminalization of public health problems, we risk perpetuating them.

Continue reading