CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

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

Next week's criminal law/procedure arguments

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

Tuesday

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

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

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

 

 

Ahmed on The Right to Counsel in a Neoliberal Age

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

 

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

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Fissell on Criminal Law Localism

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

 

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

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

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

 

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

Richmond on Biometric Data Retention

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

 

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

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Funk on Self Defense

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

 

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

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Weiss & Joy on Sex in Geriatric Care Facilities

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

 

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

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Meyn on Invisible Rules on Use of Force

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

 

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

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

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Hyatt et al. on Norwegian and American Prison Cells

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

 

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

Stern on Incorporation Doctrine

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

 

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

Donelson on Katz Circularity

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

 

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

Simester on Crime, Responsibility, Culpability, and Wrongdoing

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

 

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

Leider on The Modern Common Law of Crime

Robert Leider (George Mason University - Antonin Scalia Law School, Faculty) has posted The Modern Common Law of Crime (Journal of Criminal Law and Criminology, Vol. 111, No. 2, 2021) on SSRN. Here is the abstract:

 

Two visions of American criminal law have emerged. The first vision is that criminal law is statutory and posits that legislatures, not courts, draft substantive criminal law. The second vision, like the first, begins with legislative supremacy, but it ends with democratic dysfunction. On this view, while contemporary American criminal law is statutory in theory, in practice, American legislatures badly draft and maintain criminal codes. This effectively delegates the “real” drafting of criminal law to prosecutors, who form the law through their charging decisions.

This Article offers a third vision: that modern American criminal law is primarily “conventional” in the British Commonwealth sense of that term.

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Morgan on Policing Marginality in Public Space

Jamelia Morgan (University of Connecticut School of Law) has posted Policing Marginality in Public Space (Ohio State Law Journal, Vol. 81, No. 6, 2021) on SSRN. Here is the abstract:

 

The pandemic spurred by COVID-19 has illuminated in stark detail the threats to safety and health that have long-characterized the lived experiences of unsheltered individuals. The pandemic has brought to the forefront deeply rooted structural problems, which contributed to the social conditions now currently rendering houseless people particularly vulnerable to the brutal disease and premature death. Skyrocketing housing prices coupled with city-wide housing shortages have converged in recent years to create a nation-wide affordable housing crisis. According to a 2018 report by the National Low Income Housing Coalition, to meet existing housing demand, about 7.2 million more affordable rental housing units would have to be built across the United States. Although the severity of the problem varies across jurisdictions, the same report indicates that “[n]o state, including the District of Columbia, has an adequate supply of rental housing for extremely low income households.” In Los Angeles, perhaps the “epicenter” of the affordable housing crisis,6 the number of unsheltered people has increased 12% in Los Angeles County and 16% in the city of Los Angeles—a 52% increase for the city since 2011.7 Approximately 75% of homeless people in Los Angeles are unsheltered and live outside.

The housing crisis seems to have also prompted local jurisdictions to ramp up quality-of-life policing efforts in public spaces.

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Locke on Solicitation of Prostitution

Cara Locke (University of Toronto - Faculty of Law) has posted Debating the Rule of Law: The Curious Re-Enactment of the Solicitation Offence (Alberta Law Review, Vol. 58, No. 3, 2021) on SSRN. Here is the abstract:

 

The author worries that the rule of law was diminished when Parliament re-enacted section 213(1.1) of the Criminal Code. This “offence” is a refurbished version of the unconstitutional prohibition against communicating in public for prostitution, which was invalidated by the Supreme Court of Canada in 2013. On its face, section 213(1.1) appears to create an offence to offer sexual services near select public places where minors might be present. But on the ground, section 213(1.1) is not actually operating as an offence at all — at least according to government politicians responsible for passing section 213(1.1) into law and police officers who lobbied for its re-enactment.

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Soleto et al. on Obstacles to Sex Crime Prosecution in Spain

Helena Soleto, Sabela Oubiña Barbolla, Jessica Jullien de Asís, Aurea Grané, Margarita Diges Junco, Candela Galán González, Nieves Pérez-Mata, Anna Fiodorova, Federico González Barrera, Iván Navarro Papic, Rosa Gómez de Liaño, Raquel López Jiménez, Daniel Rodríguez Horcajo, Soledad Torrecuadrada García-Lozano, Ignacio de Torres Guajardo, Belén Hernández Moura, Emiliano Carretero Morales, Irene de Lamo Velado, Rocío Zafra Espinosa de los Monteros, Cristina Ruiz López and Miriam Peláez Devesa (Universidad Carlos III de Madrid - Faculdad de Derecho, Universidad Autónoma de Madrid, Universidad Carlos III de Madrid, Universidad Carlos III de Madrid, Universidad Autónoma de Madrid, Universidad Autónoma de Madrid, Universidad Autónoma de Madrid, University Carlos III in Madrid, Universidad Carlos III de Madrid, affiliation not provided to SSRN, University Carlos III de Madrid, Universidad Carlos III de Madrid - Faculty of Social Sciences and Law, Universidad Autónoma de Madrid, Universidad Autónoma de Madrid, Universidad Autónoma de Madrid, University Carlos III de Madrid, University Carlos III de Madrid, University Carlos III de Madrid, Universidad Carlos III de Madrid, University of Burgos and Universidad Autónoma de Madrid) have posted Drawbacks Faced by the Victims of Sexual Crime at Each Stage of the Criminal Proceeding: Spanish National Report RE-TREAT on SSRN. Here is the abstract:

 

RE-TREAT project aims to boost changes in the criminal proceedings within the justice systems in order to improve their responsiveness to the particular needs of victims of sexual crimes. This report examines the obstacles that victims of sexual violence in Spain may face when reporting and the eventual criminal proceedings at different stages.

Trautman on Domestic Terrorism and the Attack on the Capitol

Lawrence J. Trautman (Prairie View A&M University - College of Business) has posted Domestic Terrorism, Attack on the U.S. Capitol, and the Second Impeachment of Donald Trump on SSRN. Here is the abstract:

 

On February 13, 2021 Donald John Trump becomes the only American president to be impeached and acquitted twice. His acquittal for the second time follows a violent mob, having been incited by the lame-duck president into marching down Pennsylvania Avenue to break into and vandalize the Capitol Building. It is now known that at least 138 law enforcement officers suffered from or received burns, concussions, rib fractures, heart attack--- and at least 5 deaths are attributed to this insurrection. More than 300 individuals are subsequently charged for their role in this violent crime. Here is our account of the events leading up to impeachment and the Constitutional duties and responsibilities that follow.

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Moran on Disorderly Conduct

Rachel Moran (University of St. Thomas - School of Law (Minnesota)) has posted Doing Away With Disorderly Conduct (Boston College Law Review, Vol. 63, No. 1, 2022) on SSRN. Here is the abstract:

 

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language. Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people. Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order.

While courts and scholars have criticized these laws for decades, none have explicitly called for their abolition. This article does so. The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.

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