CrimProf Blog

"Why This Scientist Keeps Receiving Packages of Serial Killers’ Hair"

From The New York Times:

The trouble for detectives, or anyone else seeking to figure out whom a strand of hair belonged to, is that unless it contains a root, which only a tiny percentage do, it’s about as helpful as a nearby rock.

. . .

Until now. Ed Green, a paleogeneticist at the University of California, Santa Cruz known in the scientific community for his work on the Neanderthal genome, has developed a technique that makes it possible to recover and sequence DNA from hair without the root.

"Imagining a World Without Qualified Immunity, Part I"

Joanna Schwartz has this post at The Volokh Conspiracy. In part:

Justice Sotomayor, sometimes joined by Justice Ginsburg, has criticized the Court's qualified immunity decisions for undermining government accountability by "sanctioning a 'shoot first, think later' approach to policing." And in Ziglar v. Abbasi, Justice Thomas criticized the doctrine for straying from its common law foundations and recommended to his colleagues that, "[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence."

Although the Court has yet to accept Justice Thomas's invitation, it seems like only a matter of time until it does. Petitions for certiorari in qualified immunity cases are now regularly invoking Justice Thomas's language in Ziglar. The ACLU, the Cato Institute, and the Law Enforcement Action Partnership, among others, have submitted multiple amicus briefs to the Supreme Court, urging it to reconsider the defense. On October 1, the Supreme Court will consider a petition for certiorari in one of these cases—Baxter v. Bracey. Whether or not the Court grants cert. in Baxter, there is every reason to believe this coalition of critics will continue to bring their arguments to the Court.

Alexander on Retributive and Distributive Justice

Larry Alexander (University of San Diego School of Law) has posted Retributive Justice (Oxford Handbook of Distributive Justice, S. Olsaretti, ed. (August, 2018)) on SSRN. Here is the abstract:

 

The topic of this chapter is the relationship between retributive justice and distributive justice. The author expounds his view that retributive justice should be noncomparative, and that the currency of retributive desert should be suffering. Some theories of distributive justice employ desert as a basis for distribution, whereas other theories of distributive justice do not. The author explains his belief that retributive justice relies on the notion of negative desert, but acknowledges that there are problems if not only negative desert is to be punished but positive desert is to be rewarded. The challenge is how to integrate retributive justice into the different theories of distributive justice.

Krawiec on Corporate Crime

Kimberly D. Krawiec (Duke University School of Law) has posted Let’s Talk: What FinReg Can Learn from New Governance (And Vice Versa) (Law and Social Inquiry, Forthcoming) on SSRN. Here is the abstract:

 

Lauren Edelman’s "Working Law" is remarkably relevant to the study of financial regulation. In particular, three factors that Edelman identifies as contributing to legal endogeneity and symbolic compliance – ambiguous law, a lack of clear outcome measures, and the presence of legal intermediaries – are especially salient in this context. It has long been recognized that powerful financial institutions and the lawyers, lobbyists, and other agents who serve them have the ability to influence the law ex ante, through political lobbying. Edelman’s work reinforces the point that they may also do so ex post through an endogenous process of interpretation, implementation, and, ultimately, enshrinement of symbolic compliance with ambiguous law.

Corrado on Insanity and the Historical Understanding of Mens Rea

Michael Louis Corrado (University of North Carolina School of Law) has posted Kahler v. Kansas: Insanity and the Historical Understanding of Mens Rea on SSRN. Here is the abstract:

 

In October of this year, the United States Supreme Court will hear the case of Kahler v. Kansas, and it will have the opportunity to answer a question that it has been avoiding for some time: Does the United States Constitution — in particular, do the Due Process and the Cruel and Unusual Punishment clauses — require each of the jurisdictions of the United States to provide an affirmative defense of insanity for those accused of a crime? The petitioner, Kahler, argues that the right to an affirmative defense is "deeply rooted" in our history and tradition, and so is embedded in our Constitution. To undermine that argument, the State of Kansas attempts to show that eliminating the affirmative defense and limiting the admissibility of evidence of mental illness to its role in rebutting mens rea is consistent with history and tradition. This paper argues that the State misreads the history of mens rea, and that that misreading leads to an equivocation in the State's argument. (This is a pre-review draft of a paper written for the National Law School of India at Bangalore Review.)

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	A Call to Prosecute Drug Company Fraud As Organized Crime Eugene McCarthy University of Illinois, Springfield Date Posted: 17 Jul 2019	189
2.	How to Fix Legal Scholarmush Adam J. Kolber Brooklyn Law School Date Posted: 16 Jul 2019	135
3.	Public Perceptions of Plea Bargaining Thea Johnson University of Maine School of Law Date Posted: 29 Jul 2019	90
4.	Violent Crime and Punitiveness: An Empirical Study of Public Opinion Michael M. O'Hear and Darren Wheelock Marquette University - Law School and Marquette University Department of Social and Cultural Sciences Date Posted: 30 Aug 2019 [new to top ten]	68
5.	The Extended Corporate Mind: When Corporations Use AI to Break the Law Mihailis Diamantis University of Iowa - College of Law Date Posted: 19 Jul 2019 [10th last week]	61
6.	Sexual Assault Law Reform in New South Wales: Why the Lazarus Litigation Demonstrates No Need for s 61HE of the Crimes Act to be Changed (Except in One Minor Respect) Andrew Dyer The University of Sydney Law School Date Posted: 16 Aug 2019 [new to top ten]	60
7.	After the Crime: Rewarding Offenders’ Positive Post-Offense Conduct Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 08 Aug 2019	60
8.	Australia's 'Abhorrent Violent Material' Law: Shouting 'Nerd Harder' and Drowning Out Speech Evelyn Douek Harvard University - Harvard Law School Date Posted: 31 Aug 2019 [new to top ten]	59
9.	Statutory Federalism and Criminal Law Joshua Divine U.S. Senate Date Posted: 10 Jul 2019 [6th last week]	58
10.	Lawyers, Guns, and Mental Illness Susan McMahon Georgetown University Law Center Date Posted: 09 Aug 2019 [9th last week]	57

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective Kim Rossmo and Joycelyn Pollock Texas State University and Texas State University Date Posted: 04 Jul 2019 [2nd last week]	346
2.	Measuring Algorithmic Fairness Deborah Hellman University of Virginia School of Law Date Posted: 16 Jul 2019 [1st last week]	343
3.	Evidence in the Age of Privacy: Access to Data in the Criminal Justice System Rebecca Wexler University of California, Berkeley, School of Law Date Posted: 06 Aug 2019	226
4.	Some Doubts About 'Democratizing' Criminal Justice John Rappaport University of Chicago - Law School Date Posted: 11 Jul 2019	155
5.	Public Perceptions of Plea Bargaining Thea Johnson University of Maine School of Law Date Posted: 29 Jul 2019	90
6.	The Emerging Principles of Fourth Amendment Privacy Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 25 Jul 2019	87
7.	Federal Criminal Risk Assessment Brandon L. Garrett Duke University School of Law Date Posted: 24 Jul 2019	78
8.	Charging As Sentencing Donald A. Dripps University of San Diego School of Law Date Posted: 03 Aug 2019 [10th last week]	58
9.	Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism Nicholas Alden Kahn-Fogel University of Arkansas at Little Rock - William H. Bowen School of Law Date Posted: 08 Aug 2019 [new to top ten]	56
10.	A ‘Culture of Justification’? Police Interpretation and Application of the Human Rights Act 1998 Richard Martin London School of Economics - Law Department Date Posted: 25 Jul 2019 [new to top ten]	46

"Chicago Man Fraudulently Accrued 42 Million Delta SkyBonus Points, U.S. Says"

From The New York Times:

SkyBonus points are earned through a corporate loyalty program through which companies can accrue points that can be redeemed for free flights and rewards from the airline. According to the indictment, filed on Wednesday in United States District Court for the Northern District of Georgia, Mr. Podolsky created a SkyBonus account for a corporation called RGI International with which he is not affiliated.

Mr. Podolsky, 43, would link flights that he booked for clients of Vega International Travel Services, where he worked as a travel agent, to RGI International’s SkyBonus account, allowing him to “fraudulently accrue” points, the indictment said.

“Mr. Podolsky’s conduct relating to that program was not fraudulent,” his lawyer, Seth D. Kirschenbaum, said in a statement, adding that “the suggestion that Mr. Podolsky’s conduct somehow disadvantaged his clients is equally unfounded.”

"Norway court rules child-like sex dolls violate criminal law"

From Jurist:

The Supreme Court of Norway on Tuesday determined that sex dolls mimicking child-like qualities represent the sexualization of children and violate criminal law.

This decision stems from an attempted 2016 import of a silicone doll from Hong Kong to Norway. The doll had the appearance of a child and contained “oral, vaginal and anal body openings.” The purchaser of the doll was convicted on charges that included “resisting the confiscation of a sex doll.”

Bruer et al. on Automatically Identifying Lying Children

Kaila Bruer, Sarah Zanette, Xiaopan Ding, Thomas D. Lyon and Kang Lee (University of Regina, University of Toronto, National University of Singapore (NUS), University of Southern California Gould School of Law and Institute of Child Study) have posted Identifying Liars Through Automatic Decoding of Children's Facial Expressions (Forthcoming in Child Development) on SSRN. Here is the abstract:

 

This study explored whether children’s (N=158; 4-9 years-old) nonverbal facial expressions can be used to identify when children are being deceptive. Using a computer vision program to automatically decode children’s facial expressions according to the Facial Action Coding System, this study employed machine learning to determine whether facial expressions can be used to discriminate between children who concealed breaking a toy(liars) and those who did not break a toy(nonliars). Results found that, regardless of age or history of maltreatment, children’s facial expressions could accurately (73%) distinguished between liars and nonliars. Two emotions, surprise and fear, were more strongly expressed by liars than nonliars. These findings provide evidence to support the use of automatically coded facial expressions to detect children’s deception.

Hollway & Grunwald on Applying Sentinel Event Reviews to Policing

John Hollway and Ben Grunwald (University of Pennsylvania Law School - Quattrone Center for the Fair Administration of Justice and Duke University School of Law) have posted Applying Sentinel Event Reviews to Policing (Criminology & Public Policy, vol. 18, p. 705, 2019) on SSRN. Here is the abstract:

 

A sentinel event review (SER) is a system-based, multistakeholder review of an organizational error. The goal of an SER is to prevent similar errors from recurring in the future rather than identifying and punishing the responsible parties. In this article, we provide a detailed description of one of the first SERs conducted in an American police department—the review of the Lex Street Massacre investigation and prosecution, which resulted in the wrongful incarceration of four innocent men for 18 months. The results of the review suggest that SERs may help identify new systemic reforms for participating police departments and other criminal justice agencies.

Tanovich on Combatting Stereotyping and Facilitating Justice

David M Tanovich (University of Windsor - Faculty of Law) has posted Combatting Stereotyping & Facilitating Justice: McLachlin's Vision for the Law of Evidence (Gruben, Vanessa & Mayeda, Graham (eds), Controversies in the Common Law: Tracing the Contributions of Chief Justice McLachlin (2020)) on SSRN. Here is the abstract:

 

Beverley McLachlin is the architect of a flexible, socially conscious and principled approach to evidence admissibility in Canada. Her jurisprudence has infused the law of evidence with tools that enable it to adapt to new situations, to be aware of and reflect concerns for systemic issues all with an eye to ensuring it can fulfill its regulatory purpose of facilitating justice. I call this the McLachlin principle. This chapter explores the foundations of that approach in two early McLachlin decisions: R v Khan; R v Seaboyer; and then, as Chief Justice, in Mitchell v MNR where she set out, for the first time in a Supreme Court decision, a theory of evidence admissibility. 

After examining this evidence trilogy, the chapter will consider the application of the McLachlin principle in the context of defence applications to limit cross-examination of an accused on their prior criminal record under R v Corbett. Section 12(1) of the Canada Evidence Act permits all witnesses, including an accused, to be cross-examined on their criminal record and our common law has, for the most part uncritically, accepted that a criminal record is relevant to a witness’s credibility and whether they are prepared to abide by their oath or affirmation. In Corbett, the Supreme Court of Canada upheld the constitutionality of section 12(1) by reading into the provision a judicial discretion to prohibit or limit cross-examination on a prior record.

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"The Democrats’ Shameful Legacy on Crime"

Doug Berman has this post at Sentencing Law & Policy, excerpting an article in The New Republic. From the excerpt:

While the Clintons and Biden are guilty as charged, they had many accomplices, some of whom were not the usual suspects.  For years, House and Senate Democrats had been pushing new legislation to curb domestic violence, but it did not come up for a floor vote until the Senate incorporated the measure into the crime bill in fall 1993.  To its credit, the Violence Against Women Act heightened public awareness of sexual assault and domestic violence and provided states and communities with important new resources for crisis centers, shelters, hotlines, and prevention programs.  But VAWA also emphasized law enforcement remedies and included measures that raised serious civil rights concerns — all with the help of many national and local organizations working against rape and domestic violence.  Many of these groups have since had second thoughts about “carceral feminism.”

"Before California Boat Fire Killed 34, Entire Crew Was Asleep, N.T.S.B. Finds"

From The New York Times:

All six crew members of the Conception were asleep when the scuba diving boat caught fire and sank off the coast of Southern California early on Sept. 2, killing 34 people, according to a federal report released on Thursday.

That finding, by the National Transportation Safety Board, suggests that the crew had failed to uphold a commitment to have someone awake.

Dyer on The Mens Rea for Sexual Assault

Andrew Dyer (The University of Sydney Law School) has posted The Mens Rea for Sexual Assault, Sexual Touching and Sexual Act Offences in New South Wales: Leave it Alone (Although You Might Consider Imposing an Evidential Burden on the Accused) (Australian Bar Review, 2019, (Forthcoming)) on SSRN. Here is the abstract:

 

Following the New South Wales (NSW) government’s decision to cause the NSW Law Reform Commission (NSWLRC) to review s 61HE of the Crimes Act 1900 (NSW), various commentators have argued that Parliament should alter the mental element for the offences to which that section applies. Some have advocated the adoption of a provision that would criminalise all those who engage in non-consensual sexual activity without first obtaining from the complainant a clear indication that s/he is consenting. Others have argued that the wording of s 61HE should be tightened. By contrast, the Bar Association of NSW has argued that the mental element should be made more stringent, not less. This article opposes all of these proposals. But it also argues that an accused should be required to discharge an evidential burden before s/he is entitled to a direction about mens rea in a sexual assault, sexual touching or sexual act case.

Alexander on His Critics

Larry Alexander (University of San Diego School of Law) has posted Appreciation and Reponses (Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (H. Hurd, ed. 2018)) on SSRN. Here is the abstract:

 

In this concluding chapter in a festschrift volume in my honor, I respond to the twenty-three commentators on my work. The topics range widely – various issues in criminal law, constitutional law, and moral theory. The reader will judge how well I deal with the critiques of these commentators.

Miller on Criminal Groups and the Rule of Law

Andrew Cesare Miller (Massachusetts Institute of Technology (MIT), School of Humanities, Arts, and Social Sciences, Department of Political Science) has posted Promoting the Rule of Law in Communities with Criminal Groups: Experimental Evidence from Lagos, Nigeria on SSRN. Here is the abstract:

 

How can the state promote the rule of law in communities with criminal groups? Criminal groups often engage in bloody turf battles with quasi-impunity, undermining the state's monopoly on violence. The state struggles to contain criminal violence partly given to a lack of police-citizen cooperation. Moving beyond theories that explain limited cooperation as exclusively a function of police illegitimacy, I argue that social psychological constraints prevent citizens from sharing information with the police. Criminal groups inflate citizens' judgements of retaliation risk and create misperceptions among citizens that few other community members support sharing information. I test strategies for overcoming these constraints in Lagos, Nigeria with the first large-scale survey experiment incorporating virtual reality. Witnesses share 17% more information when a tip line is made anonymous. They share 9% more information after becoming aware of others cooperating. Exposing witnesses to co-ethnic police officers also increases information-sharing by 15% but only for those that ex-ante trust the police.

Shearing & Berg on Governing Through Harm

Clifford Shearing and Julie Berg (Griffith Institute of Criminology and University of Glasgow - Scottish Centre for Crime and Justice Research) have posted Governing-Through-Harm and Public Goods Policing on SSRN. Here is the abstract:

 

Among scholars of law and crime and practitioners of public safety, there is a pervasive view that only the public police can or should protect the public interest. Further, the prevailing perception is that the public police predominantly governs through crime—that is, acts on harms as detrimental to the public good. We argue that governing harm through crime is not always the most effective way of producing public safety and security and that the production of public safety is not limited to public police forces. An approach of governing-through-harm that uses a variety of non-crime strategies and private security agents as participants in public safety is often more effective—and more legitimate—than the predominant governing-through-crime approach. We reflect on case studies of non-crime intervention strategies from the Global South to bolster the case for decoupling the link between the public police and public goods. A new theoretical framing needs to be pursued.

"These Cops Are Seizing Cash from People Who Smell Like Weed Before They Fly to California"

From Vice, via FourthAmendment.com:

According to a civil forfeiture complaint filed in Florida's Broward County Circuit Court, Simmons was stopped by deputies with a narcotics and money laundering task force led by the Broward County Sheriff’s Office. As they peppered Simmons with questions, the complaint states, he granted the cops permission to search his backpack and his carry-on suitcase. It was then that police allegedly "smelled a strong odor of cannabis" emanating from Simmons and the clothing inside his suitcase. The JetBlue traveler said he had smoked weed earlier, but wasn't under the influence, and that although he didn't have a medical card, he used cannabis to treat work-related pain, according to the complaint.

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"Former FEMA Official Accused of Taking Bribes in Hurricane Maria Recovery"

From The New York Times:

Ms. Tribble and Mr. Ellison had a “close personal relationship,” Ms. Rodríguez Vélez said, in which Mr. Ellison lavished Ms. Tribble with gifts in exchange for her to use her influence inside FEMA to give Cobra an advantage.

The gifts ranged from a helicopter tour over Puerto Rico to securing an apartment in New York, the authorities said. They included airplane tickets, including one first class ticket from San Juan, the Puerto Rican capital, to New York, and hotel stays in Fort Lauderdale, Fla., and Charlotte, N.C.