CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, January 28, 2020

Burke on The Wire

Alafair S. Burke (Hofstra University - Maurice A. Deane School of Law) has posted I Got the Shotgun: Reflections on The Wire, Prosecutors and Omar Little (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The Wire is a show about institutions, the people trapped inside of them, and a society made static by their inaction, indifference, and ineptitude. Whether the series was exploring the drug trade, police departments, city hall, unions, or public schools, the individual actors within those systems were depicted as having little control over either the institutions or their individual fates within them. As a result, the constituencies supposedly served by those institutions continually got the shaft.

To say that The Wire is about the tolls of unmitigated capitalism and inflexible bureaucracies is not to say, however, that the show is silent on, or indifferent to, the criminal justice system that encompasses its main characters. I became especially intrigued by an episode in the first season in which police and prosecutors rely on the testimony of Omar Little in a murder trial, despite doubts about Omar’s first-hand knowledge of the crime. This essay is a reflection on the depiction of law enforcement in The Wire, both generally and with respect to the single scene that first made me a Wire addict.

January 28, 2020 | Permalink | Comments (0)

Viktor Shestak (Moscow State Institute of International Relations (MGIMO)) has posted On the Role of Legal Principles in the Criminal Legislation of Present-Day Russia ((2019). Criminal legislation of Russia: the main problems of application and areas for improvement: materials of the I-st International Scientific and Practical Conference) on SSRN. Here is the abstract:
 
The work is focused on a general analysis of criminal law principles in the Russian Federation. These principles are weighed against the Russian Constitution and the Russian Criminal Law. The relevance of the issue lies in the fundamental importance of criminal law principles for understanding the law branch as a whole. Today there are academic disputes about various principles. Constructions of the criminal law principles are pointed out as the principles of the representative of the continental legal system.

January 28, 2020 | Permalink | Comments (0)

Expert Working Group on Human Factors in Latent Print Analysis

David H. Kaye (The Pennsylvania State University (University Park) – Penn State Law) has posted The Report of the Expert Working Group on Human Factors in Latent Print Analysis -- Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach (NIST Interagency/Internal Report (NISTIR) - 7842) on SSRN. Here is the abstract:

The U.S. National Institute of Standards and Technology (NIST) asked 34 forensic scientists, latent print examiners, forensic laboratory directors, psychologists, statisticians, engineers, law professors, and other experts* to prepare a scientific review and offer recommendations regarding human factors in the forensic analysis of latent prints. The findings are presented in the following chapters, which are followed by a list of all recommendations and an extensive bibliography.

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January 28, 2020 | Permalink | Comments (0)

Monday, January 27, 2020

Shestak on Psychogenetics

Viktor Shestak (Moscow State Institute of International Relations (MGIMO)) has posted Psychogenetics. Is It Possible to Apply It in Modern Penal Law and Criminal Procedure Law? (Criminal legislation of Russia: the main problems of application and areas for improvement: Materials of all-Russian scientific and practical conference (28 November 2019)) on SSRN. Here is the abstract:
 
Author briefly explores possibilities of applying researches about psychogenetics including allelomorphic variations in modern penal law. Likely consequences of use behavioral and psychiatric genetic evidences in penal law and criminal procedure law are studied.

January 27, 2020 | Permalink | Comments (0)

Dyer on Progressive Punitiveness

Andrew Dyer (The University of Sydney Law School) has posted Progressive Punitiveness in Queensland (Australian Bar Review, 2020 (Forthcoming)) on SSRN. Here is the abstract:
 
Jonathan Crowe and Bri Lee have recently argued that the mistake of fact excuse, for which s 24 of the Criminal Code Act 1913 (Qld) provides, should be rendered inapplicable to rape and sexual assault proceedings in that State. In this article, I argue that this proposal is objectionable because, however progressive its promoters consider it to be, it is incompatible with human rights – and would probably breach the Human Rights Act 2019 (Qld). Moreover, the Queensland Law Reform Commission and the Queensland Parliament should reject an alternative proposal of Crowe and Lee’s, which seems to be aimed at achieving indirectly what their primary proposal would achieve directly. Even if Crowe and Lee’s research demonstrated that mistake of fact is causing injustice for rape and sexual assault complainants – and it does not – absolute liability for serious crime is indefensible.

January 27, 2020 | Permalink | Comments (0)

Sunday, January 26, 2020

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank Paper Downloads
1.

An Intellectual History of Mass Incarceration

Brooklyn Law School
109
2.

Hiding Homelessness: The Transcarceration of Homelessness

Seattle University School of Law
99
3.

Retributive Abolitionism

Georgetown University Law Center
68
4.

Edward Snowden, National Security Whistleblowing, and Civil Disobedience

Columbia University - Law School
68
5.

Making Sense of Corporate Criminals: A Tentative Taxonomy

University of Michigan Ross School of Business
48
6.

Do Criminal Minds Cause Crime? Neuroscience and the Physicalism Dilemma

Pace University School of Law
41
7.

Second Looks & Criminal Legislation

Arizona State University, Sandra Day O'Connor College of Law
36
8.

Guiding Presidential Clemency Decision-making

The Heritage Foundation
34
9.

Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America

University of Hawaii - William S. Richardson School of Law, Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) and Kobe University - Graduate School of Business Administration
29
10.

Opioids, Addiction Treatment, and the Long Tail of Eugenics

Willamette University College of Law
27

January 26, 2020 | Permalink | Comments (0)

Saturday, January 25, 2020

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank Paper Downloads
1.
University of Richmond School of Law

Date Posted: 09 Dec 2019 

411
2.
Washington University in St. Louis - School of Law and Wayne State University School of Law

Date Posted: 16 Jan 2020 [new to top ten]

212
3.
University of San Francisco - School of Law and Fordham University School of Law

Date Posted: 02 Dec 2019 

116
4.
Southern Methodist University - Dedman School of Law

Date Posted: 02 Dec 2019 [5th last week]

70
5.
Marquette University - Law School and Texas A&M University School of Law

Date Posted: 22 Nov 2019 [6th last week]

63
6.
Harvard Law School

Date Posted: 27 Nov 2019 [8th last week]

57
7.
The University of Sydney Law School and University of New South Wales (UNSW) - Faculty of Law

Date Posted: 02 Dec 2019 

57
8.
Sheffield Hallam University

Date Posted: 28 Nov 2019 [9th last week]

51
9.
New York Law School

Date Posted: 01 Jan 2020 [new to top ten]

43
10.
Duke University School of Law

Date Posted: 23 Dec 2019 [new to top ten]

43

January 25, 2020 | Permalink | Comments (0)

Friday, January 24, 2020

"London Police Are Taking Surveillance to a Whole New Level"

From The New York Times. In part:

London’s police department said on Friday that it would begin using facial recognition to spot criminal suspects with video cameras as they walk the streets, adopting a level of surveillance that is rare outside China.

The decision is a major development in the use of a technology that has set off a worldwide debate about the balance between security and privacy. Police departments contend that the software gives them a way to catch criminals who may otherwise avoid detection. Critics say the technology is an invasion of privacy, has spotty accuracy and is being introduced without adequate public discussion.

January 24, 2020 | Permalink | Comments (0)

Brennan-Marquez et al. on The Trial Lottery

Kiel Brennan-MarquezStephen E. Henderson and Darryl K. Brown (University of Connecticut - School of Law, University of Oklahoma - College of Law and University of Virginia School of Law) have posted The Trial Lottery on SSRN. Here is the abstract:
 
The American Founders believed all serious crimes should be tried by jury. The jury was, after all, “the heart and lungs . . . of our liberties,” intended to serve as the “circuitbreaker in the State’s machinery of justice.” Times change, of course, but few are happy that today plea bargaining is the system of criminal justice, with jury trials relegated to an almost inconsequential role. We propose to restore some measure of the Framers’ constitutional vision through a novel mechanism: a trial lottery. In short, a small percentage of cases that plead out should be randomly selected for jury trial, using the terms of the plea as an upper limit on punishment. This would have three benefits: counteracting asymmetries in plea bargaining; ‘auditing’ the law enforcement process, revealing information about how police investigate and how prosecutors charge; and revitalizing the role of jurors, lawyers, and judges in criminal adjudication. After theorizing these benefits, we close by offering a handful of proposals for implementation.

January 24, 2020 | Permalink | Comments (0)

Epps & Ortman on The Defender General

Daniel Epps and William Ortman (Washington University in St. Louis - School of Law and Wayne State University School of Law) have posted The Defender General (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
 
The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.

If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice.

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January 24, 2020 | Permalink | Comments (0)

Thursday, January 23, 2020

Ferguson on Predictive Policing Theory

Andrew Guthrie Ferguson (American University Washington College of Law) has posted Predictive Policing Theory (Chapter 24: The Cambridge Handbook of Policing in the United States (ed. Tamara Rice Lave & Eric J. Miller), Cambridge Univ. Press (2019)) on SSRN. Here is the abstract:
 
Predictive policing is changing law enforcement. New place-based predictive analytic technologies allow police to predict where and when a crime might occur. Data-driven insights have been operationalized into concrete decisions about police priorities and resource allocation. In the last few years, place-based predictive policing has spread quickly across the nation, offering police administrators the ability to identify higher crime locations, to restructure patrol routes, and to develop crime suppression strategies based on the new data.

This chapter suggests that the debate about technology is better thought about as a choice of policing theory. In other words, when purchasing a particular predictive technology, police should be doing more than simply choosing the most sophisticated predictive model; instead they must first make a decision about the type of policing response that makes sense in their community. Foundational questions about whether we want police officers to be agents of social control, civic problem-solvers, or community partners lie at the heart of any choice of which predictive technology might work best for any given jurisdiction.

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January 23, 2020 | Permalink | Comments (0)

Ezioni on Insanity in Filicide Cases

Limor Ezioni (The Academic Center of Law and Science) has posted International Misconceptions: The Insanity Defense in Filicide Cases — Israel as a Case Study (Criminal Law Bulletin, Vol. 55 , No. 2 , March 2019, p.205) on SSRN. Here is the abstract:
 
This article discusses the insanity defense in the case of a parent who committed filicide. This article will begin by reviewing the history of the insanity defense, its characteristics and components via comparative law through the United States of America, specifically the types of tests used in the different states. It will then discuss the history of the insanity defense in Israel through a chronological examination of the developments in Israeli legislation, from 1899 to the present time.

In addition to reviewing relevant cases in Israel in which the insanity defense was claimed, this article will shed light on the gap between the public’s misconception that a parent who has committed filicide “must be insane” and the reality of fact and law disproving that notion by the scarcity in which the insanity defense is accepted in filicide cases.

January 23, 2020 | Permalink | Comments (0)

Shachmurove on Prosecutorial Statements as Extrajudicial Admissions

Amir Shachmurove (Harvard Law School) has posted Sovereign Speech in Troubled Times: Prosecutorial Statements as Extrajudicial Admissions (86 Tennessee Law Review 403 (2019)) on SSRN. Here is the abstract:

On its face, Federal Rule of Evidence 801(d)(2) is elegantly simple. Distinguishing between neither private persons nor public entities, it renders admissible out-of-court statements made by an agent “authorized to make a statement on the subject” and by an agent or employee “on a matter within the scope of... [its] relationship” to the party per subparagraph (C) and (D), respectively. More colloquially, Evidence Rule 801(d)(2)(C) permits the introduction of an authorized representative’s statements into a case’s evidentiary record, and Evidence Rule 801(d)(2)(D) does the same for statements uttered by certain agents and employees. History partly vindicated the former, while a substantial trend favored the latter, at their official release in 1975.

Yet, to this day, an intractable doctrinal battle has raged over whether a federal prosecutor’s statements, from the initiation of a criminal investigation through a trial’s conclusion, fall within either subdivision.

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January 23, 2020 | Permalink | Comments (0)

Volevodz on Money Laundering and Cryptocurrency

Aleksander Volevodz (Moscow State Institute for International Relations (MGIMO-University)) has posted Countering the Legalization (Laundering) of Proceeds of Crime Committed Using Cryptocurrency: The Legal Basis for International Cooperation in the Field of Criminal Justice (Use of Cryptocurrencies for Illegal Purposes and Methods of Counteraction: Materials of the International Scientific and Practical Round Table (Moscow, 25 April 2019)) on SSRN. Here is the abstract:
 
The author comes to the conclusion of existence of the need to organize international cooperation in the investigation of crimes committed with the use of cryptocurrency, taking into account the fact that they are transnational in most cases by means of operating and other circumstances to be proven.

January 23, 2020 | Permalink | Comments (0)

Wednesday, January 22, 2020

Tatarinov on EU Criminal Jurisdiction

Matvey Tatarinov (Moscow State Institute of International Relations (MGIMO)) has posted Criminal Law and Criminal Jurisdiction of the European Union on SSRN. Here is the abstract:
 
Given the new fundamental principle of the European cooperation in criminal matters, the development of existing procedural, institutional and substantive forms of this cooperation and the establishment of new ones, issues of the notion of the European Union Criminal Law, of the limits of the EU criminal jurisdiction and of emerging conflicts of jurisdictions between the EU and third States are raised.

January 22, 2020 | Permalink | Comments (0)

Lott et al. on Expert Views on Gun Laws

John R. LottArthur Z. Berg, MD and Gary A. Mauser (Crime Prevention Research Center, Harvard University - Department of Psychiatry and Simon Fraser University (SFU) - Beedie School of Business) have posted Expert Views on Gun Laws on SSRN. Here is the abstract:
 
Academics from different fields vary widely in their views on the effectiveness of gun control. Our results indicate that public health researchers are much more supportive of gun control than are either criminologists or economists. They are also much more opposed to deregulation. Economists, by contrast, are the most skeptical of new regulations and the most supportive of deregulation. The different groups of researchers also provide very different rankings of effectiveness when asked to rate different policies.

Hundreds of millions of dollars are being put into public health research on gun control. Between 2015 and 2018, the federal government invested $43.2 million in firearms research, with 89% coming from the National Institute of Health. Congressional Democrats are pushing to include $50 million in Centers for Disease Control funding for additional gun research in the next federal budget. Some state governments are also putting millions of dollars into firearms research that consists exclusively of public health studies. Even larger amounts of funding are going to public health researchers from private sources. Yet the disparity in answers from our public health researchers on one hand, and our criminologists and economists on the other, raises questions about devoting so much money to only public health research into guns.

January 22, 2020 | Permalink | Comments (0)

Tuesday, January 21, 2020

Levinson et al. on Race and Retribution

Justin D. LevinsonRobert J. Smith and Koichi Hioki (University of Hawaii - William S. Richardson School of Law, Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) and Kobe University - Graduate School of Business Administration) have posted Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America (UC Davis Law Review, Vol. 53, 2019) on SSRN. Here is the abstract:
 
Retribution stands at the forefront of America’s criminal justice system. Yet, as Justice Anthony Kennedy cautioned, retribution is also the motive for punishment that “most often can contradict the law’s own ends.” This Article proposes, and then tests empirically, the existence of a novel contradiction of retribution — the idea that race and retribution have become automatically and inextricably intertwined in the minds of Americans.

The study we present in this Article demonstrates that the core support for retribution’s use has been shaken by implicit racial bias. Our national empirical study, conducted with over 500 jury-eligible citizens, shows that race cannot be separated from the concept of retribution itself. The study finds, for example, that Americans automatically associate the concepts of payback and retribution with Black and the concepts of mercy and leniency with White. Furthermore, the study showed that the level of a person’s retribution-race implicit bias predicted how much they supported retribution as a desirable punishment rationale — the stronger the anti-Black implicit racial bias they held, the more likely they were to harbor retributivist views of criminal punishment.

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January 21, 2020 | Permalink | Comments (0)

Newman & Welsh on Alienation and Defense Lawyers

Daniel Newman and Lucy Welsh (Cardiff University - Cardiff Law School and University of Sussex) have posted an abstract of The Practices of Modern Criminal Defence Lawyers: Alienation and Its Implications for Access to Justice (Common Law World Review 2019, Vol 48(1-2) 64–89) on SSRN. Here is the abstract:
 
This article marries two sets of independently gathered empirical data (observation and interviews) to argue that English criminal defence lawyers currently present as alienated workers. We seek to revive and revisit theories of alienation that are grounded in Marxism and use them as a lens through which lawyers’ behaviour can be viewed and understood. Building on a Marxist application of alienation, we offer a refined analysis premised upon a contemporary understanding of how alienation plays out in criminal defence work during the neoliberal era. We highlight that the way lawyers talk about their roles suggests that they have lost a sense of purpose, and feel powerless and undervalued. We argue that those feelings appear to have developed as a result of structural change — most notably funding cuts and demands for efficiency — which seem to be grounded in what can broadly be understood as neoliberal political ideology and austerity measures. We further suggest that such structural change and resultant feelings of alienation have implications for the quality of service that defendants receive.

January 21, 2020 | Permalink | Comments (0)

Bagaric & Svilar on Hard-Time Sentencing Discounts

Mirko Bagaric and Jen Svilar (Swinburne Law School and University of Tennessee, Knoxville, College of Law, Students) have posted The Cruelty of Supermax Detention and the Case for a Hard-Time Sentencing Discount: A Pragmatic Solution to a Moral Shortcoming Which Is Otherwise Unlikely to Be Fixed (Santa Clara Law Review, Vol. 60, No. 1, 2020) on SSRN. Here is the abstract:
 
We should send offenders to prison as punishment, not for punishment. This principle is currently being violated in relation to approximately 60,000 offenders who are caged in ‘supermax’ prison conditions in the United States. Many of these prisoners spend up to 23 years in a small cell with no contact with any person. The conditions are traumatic. Emerging evidence demonstrates that these conditions cause considerable psychological and physical harm to prisoners. Understandably, there are growing calls to abolish confinement of this nature. However, there are no signs that abolition of supermax conditions will occur soon. Despite this, it is incontestable that the deprivation experienced by prisoners can vary considerably, depending on the strictness of the prison regime in which the prisoner is confined. Prisoners subjected to supermax conditions suffer considerably more than those in conventional prison conditions. In this Article, we make recommendations regarding the manner in which prison conditions should impact the length of a prison term. We suggest that for most prisoners, every day spent in supermax conditions should result in two days’ credit towards the expiration of the prison term.

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January 21, 2020 | Permalink | Comments (0)

Monday, January 20, 2020

Sherrard on "Ban the Box" Policies, Discrimination, and Criminal Recidivism

Ryan Sherrard (University of California, Santa Barbara (UCSB) - Department of Economics) has posted 'Ban the Box' Policies and Criminal Recidivism on SSRN. Here is the abstract:
 
Employment has long been seen as a mechanism for reducing criminal recidivism. As such, many states and municipalities have tried to increase the employment prospects of ex-offenders through "Ban the Box" (BTB) policies, making it illegal to ask about an individual's criminal history on a job application. There are, however, questions as to how effective these policies are at helping ex-offenders successfully stay out of prison. In addition, recent research has shown that BTB policies may lead employers to racially discriminate in hiring. Using administrative prison data, this paper examines the direct effect of BTB policies on rates of criminal recidivism. I find that while BTB policies don't appear to reduce criminal recidivism overall, these policies may be exacerbating racial disparities. In particular, I show that being released into a labor market with a BTB policy is associated with higher rates of recidivism for black ex-offenders, with little to no effect for white ex-offenders. This result is robust to a number of specifications and sub-samples.

January 20, 2020 | Permalink | Comments (0)