CrimProf Blog

"Parking tickets hit the docket of federal appeals court"

From AP, via NACDL's news-of-interest:

A federal appeals court has heard arguments in a challenge to a Michigan city’s practice of marking tires to catch people who ignore time limits on parking.

Alison Taylor is appealing a decision that went in favor of Saginaw. Her attorney argues that chalking tires violates the Fourth Amendment’s protection against unreasonable searches.

The case made headlines in 2019 when the same appeals court said marking tires could be illegal without a warrant in some circumstances. The court sent the lawsuit back to a federal judge in Bay City for more work, but he eventually ruled against Taylor again.

Robinson on Culpability Theories in Extreme Cases

Darryl Robinson (Queen's University - Faculty of Law) has posted The Author Responds: Culpability Theories in Extreme Cases (Temple International & Comparative Law Journal, Vol. 35, No. 1, 2021) on SSRN. Here is the abstract:

 

This is the author’s response to the admirable contributions in a symposium on my book, Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law. The symposium was published in the Temple International & Comparative Law Journal. In response to questions, I clarify some of the arguments in the book.

One area of debate was how we resolve ambiguities in fundamental principles. I argue that we do not mechanically deduce the answers from a master theory; instead we draw on a web of normative clues to flesh out the principles – a “coherentist” method.

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Texas Tech invites applications for chair in criminal law

Texas Tech University School of Law invites applications from exceptional individuals to fill a lateral faculty position for the 2022-23 academic year (Requisition #24976BR/Professor). The position is open to candidates who are tenured at another law school or who would satisfy Texas Tech University’s requirements to be hired as a full professor with tenure. The successful candidate will have the qualifications and experience to fill the Judge George Killam, Jr. Chair of Criminal Law, and should be willing to teach Criminal Law, Criminal Procedure, and additional elective courses.

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Feinzig on The Boundary Problem of Rights Restoration

Joshua Feinzig has posted The Boundary Problem of Rights Restoration (Yale Law Journal Forum, Vol. 131, 2021 Forthcoming) on SSRN. Here is the abstract:

By conditioning restoration of felons’ political rights on the repayment of legal financial obligations, states have kept millions of potential voters from participating politically—profoundly altering the shape of the American electorate. Courts have universally upheld the practice by treating the conferral of political rights to nonmembers of the political community as an exercise of legislative grace subject to few constraints, while critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review.

This Essay traces the disagreement back to a first-order question that has gone overlooked by both sides: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood?

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply. The list was only six deep this week, apparently because of the decrease in postings over the summer.

 

Rank	Paper	Downloads
1.	Vicarious Liability for AI Mihailis Diamantis University of Iowa - College of Law Date Posted: 24 May 2021 [3rd last week]	163
2.	Testimony to the Belgian Parliament Regarding the Islamic State's Genocide Against the Yezidi Zachary D. Kaufman University of Houston Law Center Date Posted: 15 Jun 2021 [5th last week]	64
3.	Sexual Dignity in Rape Law Anna High University of Otago - Faculty of Law Date Posted: 30 Jun 2021 [7th last week]	33
4.	Roper, Graham, Miller, & the MS-13 Juvenile Homicide Cases Raphael A. Friedman NYU School of Law Date Posted: 02 Jun 2021 [new to top ten]	29
5.	The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020 Margaret Colgate Love and David Schlussel Law Office of Margaret Love and Collateral Consequences Resource Center Date Posted: 23 Jun 2021 [9th last week]	23
6.	Multilayered Criminal (F)laws Michael T. Cahill Brooklyn Law School Date Posted: 25 Jun 2021 [10th last week]	18

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Content Moderation as Surveillance Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 30 Jun 2021 [2nd last week]	140
2.	The Trump Executions Lee Kovarsky University of Texas School of Law Date Posted: 27 Jul 2021 [new to top ten]	116
3.	Procedural Categories Ramon Feldbrin University of Chicago Law School Date Posted: 28 May 2021	100
4.	Drug Supervision Jacob Schuman The Pennsylvania State University (University Park) – Penn State Law Date Posted: 11 May 2021	74
5.	Re-adoption by the European Commission of Cartel Decisions Annulled on Procedural Grounds by the EU Courts Wouter P. J. Wils King's College London - The Dickson Poon School of Law Date Posted: 27 Apr 2021	72
6.	Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 25 Jun 2021 [8th last week]	55
7.	The Puzzle of Clearance Rates, and What They Can Tell Us About Crime, Police Reform, and Criminal Justice Andrew D. Leipold University of Illinois College of Law Date Posted: 10 Jun 2021	53
8.	Against Geofences Haley Amster and Brett Diehl Stanford Law School and Stanford Law School Date Posted: 28 Apr 2021 [10th last week]	51
9.	Handling Aggravating Facts after Blakely: Findings from Five Presumptive-guidelines States Nancy J. King Vanderbilt University - Law School Date Posted: 27 Apr 2021	50
10.	A Scapegoat Theory of Bivens Katherine Mims Crocker William & Mary Law School Date Posted: 24 May 2021 [new to top ten]	40

Mulcahy et al. on The Virtual Courtroom

Linda Mulcahy, Emma Rowden and Wend Teeder (Centre for Socio-Legal Studies, University of Technology Sydney (UTS) and Centre for Socio-Legal Studies) have posted Testing the Case for a Virtual Courtroom with a Physical Jury Hub: Second Evaluation of a Virtual Trial Pilot Study Conducted by JUSTICE (https://justice.org.uk/our-work/justice-covid-19-response/) on SSRN. Here is the abstract:

 

The question that JUSTICE have posed is whether, in this time of crisis, it is possible to hold ‘dispersed’ or virtual trials in which the principles of fairness, accuracy of evidence and certainty can be met. In order to test the case for virtual jury trials they organised four virtual trial experiments between April-June 2020. This report is the second in a series that provides a description and analysis of what has been learnt from these experiments. This report focuses on the final trial in which the jury were assembled together in a physical ‘jury hub’ and all other participants appeared from different locations. In this final experiment the defendant appeared by way of a video link from a court video hearing room in HMP Leeds. This report also draws on additional improvements to the process identified during the third trial where the jury remained dispersed.

Slobogin on Just Algorithms

Christopher Slobogin (Vanderbilt University - Law School) has posted Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press) on SSRN. Here is the abstract:

 

Statistically-derived algorithms, adopted by many jurisdictions in an effort to identify the risk of reoffending posed by criminal defendants, have been lambasted as racist, de-humanizing, and antithetical to the foundational tenets of criminal justice. Just Algorithms argues that these attacks are misguided and that, properly regulated, risk assessment tools can be a crucial means of safely and humanely dismantling our massive jail and prison complex. The book explains how risk algorithms work, the types of legal questions they should answer, and the criteria for judging whether they do so in a way that minimizes bias and respects human dignity. It also shows how risk assessment instruments can provide leverage for curtailing draconian prison sentences and the plea-bargaining system that produces them. The ultimate goal of the book is to develop the principles that should govern, in both the pretrial and sentencing settings, the criminal justice system's consideration of risk. Table of Contents and Preface are provided, as well as a recent article that tracks closely two of the book's chapters.

Lain on Death Penalty Exceptionalism and Administrative Law

Corinna Lain (University of Richmond - School of Law) has posted Death Penalty Exceptionalism and Administrative Law (8 Belmont L. Rev. 552 (2021)) on SSRN. Here is the abstract:

 

Prosecutors ask for death sentences, and judges and juries impose them, but the people who actually carry out those sentences are corrections department officials—administrative agency personnel. In this symposium contribution, I explore a little known nook of administrative law, examining how administrative law norms work in the execution setting of lethal injection. What I find is death penalty exceptionalism—the notion that “death is different” so every procedural protection should be provided—turned on its head. Lethal injection statutes just say “lethal injection,” providing no guidance whatsoever to those who must implement them. Prison personnel have no expertise in deciding what drugs to use or how to perform the procedure. And the usual administrative law devices that we rely on to bring transparency and accountability to the agency decision-making process are noticeably absent. The culmination of these irregularities is a world where lethal injection drug protocols are decided by Google searches and other decision-making processes that would never pass muster in any other area of administrative law. In the execution context, death penalty exceptionalism means that the minimal standards that ordinarily attend administrative decision-making do not apply. It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less. In the end, when the death penalty meets administrative law, administrative law norms get sullied and the death penalty loses the one comfort one might otherwise have: that when the state takes human life, it takes extra care to do it right. What happens at the intersection of these two great bodies of law is a result not good for either.

Durante et al. on Assessing Truthfulness of Child Speech

Zane Durante, Victor Ardulov, Manoj Kumar, Jennifer Gongola, Thomas D. Lyon and Shrikanth Narayanan (University of Southern California, University of Southern California, University of Southern California, USC Gould School of Law, University of Southern California Gould School of Law and University of Southern California) have posted Causal indicators for assessing the truthfulness of child speech in forensic interviews (Forthcoming in Computer Speech & Language) on SSRN. Here is the abstract:

 

When interviewing a child who may have witnessed a crime, the interviewer
must ask carefully directed questions in order to elicit a truthful statement
from the child. The presented work uses Granger causal analysis to examine
and represent child-interviewer interaction dynamics over such an interview.
Our work demonstrates that Granger Causal analysis of psycholinguistic and
acoustic signals from speech yields significant predictors of whether a child
is telling the truth, as well as whether a child will disclose witnessing a
transgression later in the interview. By incorporating cross-modal Granger
causal features extracted from audio and transcripts of forensic interviews,
we are able to substantially outperform conventional deception detection
methods and a number of simulated baselines. Our results suggest that
a child's use of concreteness and imageability in their language are strong
psycholinguistic indicators of truth-telling and that the coordination of child
and interviewer speech signals is much more informative than the specific
language used throughout the interview.

Mulcahy on Online Criminal Trials

Linda Mulcahy (Centre for Socio-Legal Studies) has posted Virtual Poverty? What Happens when Criminal Trials Go Online? (in Dave Cowan and Ann Mumford (eds) Pandemic Legalities: Legal Responses to COVID-19 – Justice and Social Responsibility (University of Bristol Press Law, Society, Policy Series 2021 (Forthcoming)) on SSRN. Here is the abstract:

 

The challenge posed by the editors of this collection is for authors to reflect on what good can come out of the pandemic. This is far from easy to address in the context of ever more evidence of a divided polity, but this chapter will look at the rapid rise in the use of video hearings caused by the pandemic and their potential to improve the lot of the poor. Academics, including myself, have been sceptical about the extent to which the needs of lay users and open justice are served when technology is used to circumvent the need for everyone to come to a physical court. What is different about developments during the pandemic is that they have prompted experiments in which everyone including elite legal actors have been forced online and made to reflect on the experience. In the sections which follow I outline developments to date before going on to consider the extent to which totally online trials have the potential to create a more level playing field in the criminal justice system. In doing so I argue that there is a danger that critics of the use of technology are in danger of romanticising physical courthouses as places which are better at dignifying lay users of the justice system or encouraging their participation.

Hanan on Talking Back in Court

Eve Hanan (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Talking Back in Court (Washington Law Review, Vol. 96, No. 2, 2021) on SSRN. Here is the abstract:

 

People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court. In individual cases, talking back could result in fairer outcomes. On a systemic level, talking back could bring much needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.

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Roach on Trial by Jury

Kent Roach (University of Toronto - Faculty of Law) has posted Trial by Jury and the Toronto 18 ((2021) 44 Manitoba Law Journal 221) on SSRN. Here is the abstract:

 

This chapter examines the trial of Fahim Ahmad, Steven Chand, and Asad Ansari, which was the only jury trial in the Toronto 18 prosecutions and the first held under post 9/11 terrorism offences. Part II examines the role of juries in past national security trials. These include those that occurred after the 1837 rebellions; after the assassination of D’Arcy McGhee; after the 1885 M tis resistance; after the Winnipeg General Strike; and after the October Crisis of 1970. The third part examines the public record of the Toronto 18 jury trial, including decisions about what questions could and could not be asked by the accused about potential jurors and the decision to require the three accused to stand in the prisoner’s dock. Part IV examines the future of jury trials in terrorism cases in light of the exploration of this topic by the Air India commission and 2019 reforms to jury selection. Although the jury is often conceived as a shield for the individual from the state, it can also be a sword that the state can wield against unpopular accused. Sometimes unpopular accused may be better off selecting, if they can, trial by judge alone.

Berry on Eighth Amendment Proportionality

William W. Berry (University of Mississippi School of Law) has posted The Evolving Standards, As Applied on SSRN. Here is the abstract:

 

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility—that the defendant is beyond hope of rehabilitation—as a prerequisite to imposing a JLWOP sentence.

In dicta, the Court suggested that Jones could have made an individual as-applied challenge to his sentence under the Eighth Amendment by claiming that his JLWOP sentence was disproportionate to the crime he committed. While the Court has used a narrow disproportionality standard in non-capital, non-JLWOP cases, it is not clear what standard would apply to individual as-applied Eighth Amendment challenges in capital and JLWOP cases. The Court customarily reviews such cases categorically under a heightened evolving standards of decency standard, which suggests that an individual as-applied challenge would also merit some heightened level of review.

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Bronsther on Limiting Retributivists

Jacob Bronsther has posted The Limits of Retributivism (24 New Criminal Law Review 301 (2021)) on SSRN. Here is the abstract:

"Limiting retributivists” believe that the vagueness of retributive proportionality represents a moral opportunity. They maintain that the state can permissibly harm an offender for the sake of crime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively “not undeserved” punishments. However, in this essay, I argue that retributivism can justify only the least harmful sentence within such a range. To impose a sentence beyond this minimum would be cruel from a retributive perspective. It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends. Thus, if our nonretributive policy aims required a harsher sentence, the offender’s retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible.

"Texas Begins Jailing Border Crossers On Trespassing Charges"

From NPR, via NACDL's news-of-interest:

Since first announcing earlier this summer that Texas would begin charging migrants with state crimes, Abbott has said law enforcement would not be involved in "catch and release" and said those arrested would spend time behind bars. But Martinez said he would handle the cases same as usually does, which typically means offering time served.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Neuroscience and the Model Penal Code's Mens Rea Categories Andreas Kuersten and John D. Medaglia Georgetown University - Center for Clinical Bioethics and Assistant Professor Date Posted: 28 May 2021	227
2.	Constraining Criminal Laws F. Andrew Hessick and Carissa Byrne Hessick University of North Carolina School of Law and University of North Carolina School of Law Date Posted: 28 Apr 2021	189
3.	Vicarious Liability for AI Mihailis Diamantis University of Iowa - College of Law Date Posted: 24 May 2021	160
4.	Mala Prohibita and Proportionality Youngjae Lee Fordham University School of Law Date Posted: 24 May 2021 [5th last week]	67
5.	Testimony to the Belgian Parliament Regarding the Islamic State's Genocide Against the Yezidi Zachary D. Kaufman University of Houston Law Center Date Posted: 15 Jun 2021 [6th last week]	62
6.	The California Act to Save [Black] Lives? Race, Policing, and the Interest Convergence Dilemma in the State of California Eliana Machefsky University of California, Berkeley - School of Law Date Posted: 19 Apr 2021 [8th last week]	36
7.	Sexual Dignity in Rape Law Anna High University of Otago - Faculty of Law Date Posted: 30 Jun 2021 [new to top ten]	23
8.	Marital Rape in India: A Critical Study Dr. Raj Kumar Yadav and Manish Dalal Faculty of Law, Baba Mast Nath University and Faculty of Law, Baba Mast Nath University Date Posted: 27 May 2021 [new to top ten]	22
9.	The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020 Margaret Colgate Love and David Schlussel Law Office of Margaret Love and Collateral Consequences Resource Center Date Posted: 23 Jun 2021 [10th last week]	21
10.	Multilayered Criminal (F)laws Michael T. Cahill Brooklyn Law School Date Posted: 25 Jun 2021 [new to top ten]	16

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Section 24(2) in the Trial Courts: An Empirical Analysis of the Legal and Non-legal Determinants of Excluding Unconstitutionally Obtained Evidence in Canada Steven Penney and Moin A. Yahya University of Alberta - Faculty of Law and University of Alberta - Faculty of Law Date Posted: 27 May 2021 [2nd last week]	137
2.	Content Moderation as Surveillance Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 30 Jun 2021 [new to top ten]	121
3.	Procedural Categories Ramon Feldbrin University of Chicago Law School Date Posted: 28 May 2021 [4th last week]	99
4.	Drug Supervision Jacob Schuman The Pennsylvania State University (University Park) – Penn State Law Date Posted: 11 May 2021 [6th last week]	74
5.	Re-adoption by the European Commission of Cartel Decisions Annulled on Procedural Grounds by the EU Courts Wouter P. J. Wils King's College London - The Dickson Poon School of Law Date Posted: 27 Apr 2021 [7th last week]	71
6.	In Re: Expeditious Trial of Cases U/S 138 of N.I. Act, 1881 – a Welcome Judgment Muluguri Srinivas Department of Law Date Posted: 14 May 2021 [9th last week]	62
7.	The Puzzle of Clearance Rates, and What They Can Tell Us About Crime, Police Reform, and Criminal Justice Andrew D. Leipold University of Illinois College of Law Date Posted: 10 Jun 2021 [10th last week]	53
8.	Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 25 Jun 2021 [new to top ten]	52
9.	Handling Aggravating Facts after Blakely: Findings from Five Presumptive-guidelines States Nancy J. King Vanderbilt University - Law School Date Posted: 27 Apr 2021 [new to top ten]	47
10.	Against Geofences Haley Amster and Brett Diehl Stanford Law School and Stanford Law School Date Posted: 28 Apr 2021 [new to top ten]	47

"Tom Barrack, Trump’s friend and fund-raiser, is freed on $250 million bond."

From The New York Times:

The seven-count indictment unveiled this week accused Mr. Barrack of using his access to former President Donald J. Trump to advance the foreign policy goals of the United Arab Emirates, and then repeatedly misleading federal agents.

Federal prosecutors said Mr. Barrack had used his position as an outside adviser to Mr. Trump’s campaign to publicly promote the Emirates’ agenda while soliciting direction, feedback and talking points from senior Emirati officials.

Once Mr. Trump was elected, they said, Mr. Barrack invited senior Emirati officials to give him a “wish list” of foreign policy actions they wanted Washington to take within the first 100 days, first six months and first year of Mr. Trump’s term, and by the end of it, prosecutors said.

"Biden gives victims of crime a boost"

From Courthouse News Service, via NACDL's news-of-interest:

The revised act signed Thursday piles new funding into victim compensation programs for all 50 states. That means victims who find themselves struggling to pay for critical services in the wake of their trauma can receive financial assistance for things like counseling services. The fund can also go toward replenishing wage earnings that victims might have lost as a result of the crimes committed against them.