CrimProf Blog

Roberts on The Accused's Right to Accurate Procedures

Andrew J. Roberts (Melbourne Law School) has posted The Frailties of Human Memory and the Accused's Right to Accurate Procedures on SSRN. Here is the abstract:

 

The argument presented in this paper is that not only should the state make greater use of scientific research, it is under a moral and legal obligation to do so. The source of this obligation is the right to the most accurate procedures for determining innocence and guilt. I will suggest that this right is implied by the presumption of innocence.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Mens Rea Reform and Its Discontents Benjamin Levin University of Colorado Law School Date Posted: 15 Jan 2019	197
2.	Consent and Coercion Kimberly Kessler Ferzan University of Virginia, School of Law Date Posted: 31 Jan 2019	151
3.	Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims Jessica Aycock Texas Tech University School of Law Date Posted: 14 Feb 2019	127
4.	Making Federalism Great Again: How the Trump Administration's Attack on Sanctuary Cities Unintentionally Strengthened Judicial Protection for State Autonomy Ilya Somin George Mason University - Antonin Scalia Law School, Faculty Date Posted: 07 Mar 2019 [6th last week]	89
5.	Inheritance Forgery Reid K. Weisbord and David Horton Rutgers Law School and University of California, Davis - School of Law Date Posted: 08 Feb 2019 [4th last week]	85
6.	Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence Mugambi Jouet McGill Faculty of Law Date Posted: 22 Jan 2019 [5th last week]	71
7.	FOSTA: A Hostile Law with a Human Cost Lura Chamberlain Fordham University - Fordham Law Review Date Posted: 06 Feb 2019 [10th last week]	64
8.	Mitigations: The Forgotten Side of the Proportionality Principle Paul H. Robinson University of Pennsylvania Law School Date Posted: 01 Mar 2019 [new to top ten]	60
9.	Proportionality Theory in Punishment Philosophy: Fated for the Dustbin of Otiosity? Michael Tonry University of Minnesota - Twin Cities - School of Law Date Posted: 25 Feb 2019	57
10.	Criminal-Justice Apps Adam M. Gershowitz William & Mary Law School Date Posted: 24 Feb 2019 [new to top ten]	45

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail Aurelie Ouss and Megan T. Stevenson University of Pennsylvania and George Mason University - Antonin Scalia Law School, Faculty Date Posted: 25 Feb 2019	561
2.	Feigned Consensus: Usurping the Law in Shaken Baby Syndrome/Abusive Head Trauma Prosecutions Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, MD, Julie Mack, David A. Moran, Barry Scheck and Thomas Bohan University of Wisconsin Law School, Seton Hall University School of Law, Stanford University - Pediatric Radiology and Neuroradiology, Pennsylvania State University - Penn State Hershey Medical Center, University of Michigan Law School, Professor of Law, Cardozo Law School, Co-Director, Innocence Project and American Academy of Forensic Sciences Date Posted: 05 Feb 2019	479
3.	Why Robert Mueller’s Appointment As Special Counsel Was Unlawful Steven G. Calabresi and Gary Lawson Northwestern University - Pritzker School of Law and Boston University School of Law Date Posted: 31 Jan 2019 [4th last week]	137
4.	Juvenile Life Without Parole in North Carolina Ben Finholt, Brandon L. Garrett, Karima Modjadidi and Kristen Renberg NC Prisoner Legal Services, Duke University School of Law, Duke University School of Law and Duke University School of Law Date Posted: 19 Feb 2019 [6th last week]	127
5.	Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims Jessica Aycock Texas Tech University School of Law Date Posted: 14 Feb 2019	126
6.	Wealth, Equal Protection, and Due Process Brandon L. Garrett Duke University School of Law Date Posted: 19 Jan 2019 [7th last week]	123
7.	Is Police Behavior Getting Worse? The Importance of Data Selection in Evaluating the Police Aurelie Ouss and John Rappaport University of Pennsylvania and University of Chicago - Law School Date Posted: 31 Jan 2019 [9th last week]	108
8.	Beyond State v. Loomis: Artificial Intelligence, Government Algorithmization, and Accountability Han-Wei Liu, Ching-Fu Lin and Yu-Jie Chen Monash University, National Tsing Hua University and Institutum Iurisprudentiae, Academia Sinica Date Posted: 20 Jan 2019 [10th last week]	106
9.	An Empirical Study of Terrorism Charges and Terrorism Trials in Canada between September 2001 and September 2018 Michael Nesbitt University of Calgary, Faculty of Law Date Posted: 07 Feb 2019 [new to top ten]	101
10.	Afrofuturism, Critical Race Theory, and Policing in the Year 2044 I. Bennett Capers Brooklyn Law School Date Posted: 11 Feb 2019 [new to top ten]	78

Moy on Police Technology and Racial Inequity

Laura Moy (Center on Privacy & Technology at Georgetown Law) has posted How Police Technology Aggravates Racial Inequity: A Taxonomy of Problems and a Path Forward on SSRN. Here is the abstract:

 

Over the past several years, increased awareness of racial inequity in policing, combined with increased scrutiny of police technologies, have sparked concerns that new technologies may aggravate racial inequity in policing. In order to evaluate whether or not they do so, however, the problem must be more clearly defined. Some scholars have explored racial inequity in depth as it relates to specific police technologies. But to date, none have provided an explanation of how police technology aggravates racial inequity that can be applied across all technologies.

This article fills that gap. It offers a proposed new taxonomy that parses police technology’s aggravation of racial inequity as five distinct problems: Police technology may (1) replicate inequity in policing, (2) mask inequity in policing, (3) transfer inequity from elsewhere to policing, (4) exacerbate inequitable policing harms, and/or (5) compromise oversight of inequity in policing.

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Denno on Neuroscience and the Personalization of Criminal Law

Deborah W. Denno (Fordham University School of Law) has posted Neuroscience and the Personalization of Criminal Law (University of Chicago Law Review, Vol. 86, pp 359-401 (2019)) on SSRN. Here is the abstract:

 

While objective standards of reasonableness permeate most legal disciplines, criminal law has trended toward personalization since the 1960s, when the Model Penal Code introduced conceptions of mental states based on Freudian psychoanalytic theory. Today, advancements in neuroscience offer previously inconceivable insights into living brain structures and damage. This Essay contends that a criminal justice system that uses personalizing neuroscientific evidence will yield better outcomes. This Essay contributes two unique tools to the personalized law debate. First are the results of my two-decade-long Neuroscience Study, in which I have compiled eight hundred criminal cases that addressed neuroscientific evidence in any capacity. The data gathered from these cases suggest that simplistic views that regard neuroscience as either entirely exculpatory or solely indicative of future dangerousness are misinformed. Second, this Essay posits a probabilistic theory of analyzing evidence based on Bayes’s Theorem. Bayes’s Theorem offers a compelling model of human reasoning that comports with the process of assessing a defendant’s culpability in legal settings. Neuroscientific evidence can thus be understood as a means of modifying initial beliefs and mitigating implicit biases in criminal contexts. Employing these tools, I analyze the impact of personalized evidence on criminal defenses, which I argue are strongly motivated by probabilistic determinations of a defendant’s culpability. These determinations have significant impacts beyond individual cases and can contribute to trends in litigation funding. This Essay systematically argues that personalization, fueled by neuroscientific evidence, can provide gains in fairness and efficiency, especially when admitted in the context of criminal defenses, due to their emphasis on probabilistic determinations of culpability.

King & Heise on Misdemeanor Appeals

Nancy J. King and Michael Heise (Vanderbilt University - Law School and Cornell Law School) have posted Misdemeanor Appeals on SSRN. Here is the abstract:

 

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet very little empirical information exists on many aspects of misdemeanor prosecutions. This Article provides the first quantitative look at appellate review in misdemeanor cases, nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in 10,000 misdemeanor convictions, and disturb only one conviction or sentence out of every 10,000 misdemeanor judgments. This level of oversight is much lower than that for felony cases, for reasons we explain. To develop law and regulate error in misdemeanor cases, particularly in prosecutions for the lowest-level offenses, courts may need to provide mechanisms for judicial scrutiny outside the direct appeal process.

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Nanasi on Disarming Domestic Abusers

Natalie Nanasi (Southern Methodist University - Dedman School of Law) has posted Disarming Domestic Abusers on SSRN. Here is the abstract:

 

Guns and domestic violence are a deadly combination. Every sixteen hours, a woman is fatally shot by her intimate partner in the United States; the mere presence of a gun in a domestic violence situation increases the risk of homicide for women by 500 percent. 

Recognizing these risks, federal law and some states prohibit domestic abusers from possessing firearms. But these laws are not being enforced. Perpetrators of domestic violence are rarely ordered to surrender firearms, and even when they are, there are often no mechanisms to ensure that weapons are safely relinquished.

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Outlaw on Drug and Violent Offenses

Lucius Outlaw III (Howard University School of Law) has posted Time for A Divorce: Uncoupling Drug Offenses From Violent Offenses in Federal Sentencing Law, Policy, and Practice (AM.J. CRIM. L. (2016) Vol. 44:1) on SSRN. Here is the abstract:

 

One issue that is lost in the current discussions about criminal justice reform is how throughout federal sentencing law and practice, drug offenses are pervasively linked to violent offenses for the purposes of lengthening prison sentences. Throughout federal criminal statutes, sentencing guidelines and policies, drug crimes and violent crimes are not only treated equally, but also interchangeably to increase a defendant’s prison sentence. This interchangeable equivalence is ingrained in federal criminal statutes and sentencing guidelines providing some of the lengthiest terms of imprisonment. If we are truly serious about reducing our over-reliance on imprisonment and confronting the disparities tied to the “war on drugs” and federal drug policies, then an action-item that must be on the agenda is de-coupling violent conduct with non-violent drug conduct for sentencing purposes. This article discusses one such policy – the career offender guideline – as an emblematic example of the wayward approach of equating drug offenses with violent offenses.

Carroll on Graffiti

Jenny E. Carroll (University of Alabama - School of Law) has posted Graffiti, Speech, and Crime (Minnesota Law Review, Vol. 103, No. 1285, 2019) on SSRN. Here is the abstract:

 

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that appears in the middle of the night on someone else’s property and the possibility that the tag might enjoy an embedded meaning, First Amendment jurisprudence does not wax philosophical about the values of equality or democracy or the utility of a free marketplace of ideas. Under criminal law, graffiti is regulated as a property offense or nuisance offense based on the damage it causes, with no consideration of the message it contains.

This Article argues that this rote calculation is wrong.

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Moran on Police Privacy

Rachel Moran (University of St. Thomas School of Law) has posted Police Privacy (10 UC Irvine Law Review (2019, Forthcoming)) on SSRN. Here is the abstract:

 

Police officers around the country are accused of misconduct every day. Their misconduct is alleged and documented in the form of civilian complaints, internal affairs reports, performance reviews, disciplinary board findings, and other records. These misconduct records contain information that is arguably both relevant to the public’s interest in holding police officers accountable, and personal to the officer. But jurisdictions provide vastly different answers to the question of who should have access to these records. Some states prevent the public from accessing any police misconduct records. Many grant public access to a limited category of misconduct records, and deny access to most others. A small minority of jurisdictions make all such records publicly available to anyone who requests them. 

These varied approaches to disclosure of misconduct records stem from widely divergent understandings (or misunderstandings) of privacy rights.

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"(S)exploiting the Vulnerable: Empowering Future Legal Advocates to Combat Sex Trafficking"

This conference will be held at Wayne State on April 12. Full details here.

Martinez on Complex Compliance Investigations

Veronica Root Martinez (Notre Dame Law School) has posted Complex Compliance Investigations (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Whether it is a financial institution like Wells Fargo, an automotive company like General Motors, a transportation company like Uber, or a religious organization like the Catholic Church, failing to properly prevent, detect, investigate, and remediate misconduct within an organization’s ranks can have devastating results. The importance of the compliance function is accepted within corporations, but the reality is that all types of organizations—private or public—must ensure their members comply with legal and regulatory mandates, industry standards, and internal norms and expectations. They must police thousands of members’ compliance with hundreds of laws. And when compliance failures occur at these complex organizations they can be significant and widespread in both scope and associated harms.

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Buchhandler-Raphael on Provocation

Michal Buchhandler-Raphael (Washington and Lee University School of Law) has posted Loss of Self-Control, Dual-Process Theories and Provocation (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Contemporary understanding of the provocation defense views the loss of self-control theory as the cornerstone of this partial excuse. In considering whether to reduce murder charges to voluntary manslaughter, juries and judges rely on this theory to determine if the defendant experienced such intense emotional arousal that resulted in losing self-control, and if a reasonable person would have also likely lost self-control in similar circumstances.

The article questions this conventional wisdom by examining the various flaws embedded in provocation’s loss of self-control theory. It argues that the theory is both over-and-under inclusive. It is over-inclusive because it provides a basis for mitigation in cases where leniency is normatively unwarranted given policy considerations. It is also under-inclusive because it only accommodates the typical reactions of angry defendants who manifest sudden impulsivity, yet it fails to help defendants who visibly appear calm and composed, because their emotional arousal was triggered by a host of other emotions beyond anger, mostly fear, desperation and hopelessness.

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Skinner-Thompson on Recording Cops

Scott Skinner-Thompson (University of Colorado Law School) has posted Recording as Heckling (Georgetown Law Journal, Vol. 108 (2019)) on SSRN. Here is the abstract:

 

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy. 

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public, while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, as a form of confrontation to authority, is also a direct method of expression. Likewise, efforts to maintain privacy while navigating public space may create an incubator for thought and future speech, and also serve as direct expressive resistance to surveillance regimes.

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Donovan on Sex Trafficking Victims

Elizabeth M Donovan (Ave Maria School of Law) has posted Same As It Ever Was: In Support of the Rights of Sex Trafficking Victims (Quinnipiac Law Review, Vol. 36, No. 4, 2018) on SSRN. Here is the abstract:

 

This article examines the factors that lead historians to conclude that early 20th century Progressive reformers created a panic over a perceived sex trafficking problem that never really existed. It then examines how those same factors drive contemporary sex worker rights advocates to object to treating individuals in the sex trade as victims. The article then turns to the demand for sexual access, and the harsh physical, mental, and social harms that individuals in the sex trade suffer, even under the best circumstances. Finally, the article outlines United Nations and United States prostitution and sex trafficking policy recommendations aimed at reducing the number of individuals drawn into and kept in the sex industry, reducing the harms suffered by individuals in or leaving the industry, and reducing the market for the purchase of sexual access to others.

Rychlak on Miranda

Ronald J. Rychlak (University of Mississippi, School of Law) has posted Baseball, Hot Dogs, Apple Pie, and Miranda Warnings (50 Texas Tech Law Rev. 15 (2017)) on SSRN. Here is the abstract:

 

When the Supreme Court first adopted the Miranda rule, it was new and exotic. At times, it was said to be a prophylactic rule, subject to amendment or revocation by Congress. Eventually it became an accepted part of American life. As that happened, it also became more than prophylactic. Today, even though aspects of it may be confusing, Miranda is built into the American culture. As such, the United States Supreme Court has properly come to view it as a fully constitutional rule.

Adams on National Search to Seize Cyberspace

Devin M. Adams has posted The 2016 Amendments to Criminal Rule 41: National Search Warrants to Seize Cyberspace, 'Particularly' Speaking (51 Univ. Rich. L. Rev. 727 (2017)) on SSRN. Here is the abstract:

 

George Orwell‘s dystopia, with the ever-watchful Big Brother, has seemingly become a reality with the recently passed amendments to Rule 41 of the Federal Rules of Criminal Procedure. Rule 41, governing searches and seizures, now permits magistrate judges to authorize agents—under a single warrant—to “remotely access,” and simultaneously search, copy and seize information from an infinite number of unknown electronic devices in multiple districts anywhere in the country. The unlimited jurisdiction provision is triggered when a device‘s location is obscured through “technological means,” or if agents are investigating computer crimes in five or more districts—regardless of whether the locations of the innumerable search targets are known. Absent clairvoyance, this begs the question of how Fourth Amendment warrant requirements are applied to such a sweeping search.

This comment examines this Fourth Amendment question through a close analysis of hacking technology and the government's technological response that has yet to appear before the U.S. Supreme Court.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Mens Rea Reform and Its Discontents Benjamin Levin University of Colorado Law School Date Posted: 15 Jan 2019	182
2.	Consent and Coercion Kimberly Kessler Ferzan University of Virginia, School of Law Date Posted: 31 Jan 2019	150
3.	Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims Jessica Aycock Texas Tech University School of Law Date Posted: 14 Feb 2019	122
4.	Inheritance Forgery Reid K. Weisbord and David Horton Rutgers Law School and University of California, Davis - School of Law Date Posted: 08 Feb 2019	77
5.	Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence Mugambi Jouet McGill Faculty of Law Date Posted: 22 Jan 2019	70
6.	Making Federalism Great Again: How the Trump Administration's Attack on Sanctuary Cities Unintentionally Strengthened Judicial Protection for State Autonomy Ilya Somin George Mason University - Antonin Scalia Law School, Faculty Date Posted: 07 Mar 2019 [new to top ten]	60
7.	Participation in Crime Antje du Bois-Pedain University of Cambridge, Faculty of Law Date Posted: 14 Jan 2019 [9th last week]	57
8.	Backyard Breeding: Regulatory Nuisance, Crime Precursor Lisa Milot University of Georgia School of Law Date Posted: 16 Jan 2019 [7th last week]	57
9.	Proportionality Theory in Punishment Philosophy: Fated for the Dustbin of Otiosity? Michael Tonry University of Minnesota - Twin Cities - School of Law Date Posted: 25 Feb 2019 [new to top ten]	55
10.	FOSTA: A Hostile Law with a Human Cost Lura Chamberlain Fordham University - Fordham Law Review Date Posted: 06 Feb 2019 [new top 10]	54

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

Wednesday

• Flowers v. Mississippi: Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky in this case.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail Aurelie Ouss and Megan T. Stevenson University of Pennsylvania and George Mason University - Antonin Scalia Law School, Faculty Date Posted: 25 Feb 2019	537
2.	Feigned Consensus: Usurping the Law in Shaken Baby Syndrome/Abusive Head Trauma Prosecutions Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, MD, Julie Mack, David A. Moran, Barry Scheck and Thomas Bohan University of Wisconsin Law School, Seton Hall University School of Law, Stanford University - Pediatric Radiology and Neuroradiology, Pennsylvania State University - Penn State Hershey Medical Center, University of Michigan Law School, Professor of Law, Cardozo Law School, Co-Director, Innocence Project and American Academy of Forensic Sciences Date Posted: 05 Feb 2019	466
3.	Fourth Amendment Textualism Jeffrey Bellin William & Mary Law School Date Posted: 13 Jan 2019 [4th last week]	160
4.	Why Robert Mueller’s Appointment As Special Counsel Was Unlawful Steven G. Calabresi and Gary Lawson Northwestern University - Pritzker School of Law and Boston University School of Law Date Posted: 31 Jan 2019 [5th last week]	135
5.	Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims Jessica Aycock Texas Tech University School of Law Date Posted: 14 Feb 2019 [6th last week]	122
6.	Juvenile Life Without Parole in North Carolina Ben Finholt, Brandon L. Garrett, Karima Modjadidi and Kristen Renberg NC Prisoner Legal Services, Duke University School of Law, Duke University School of Law and Duke University School of Law Date Posted: 19 Feb 2019 [7th last week]	121
7.	Wealth, Equal Protection, and Due Process Brandon L. Garrett Duke University School of Law Date Posted: 19 Jan 2019 [9th last week]	118
8.	Wealth-Based Penal Disenfranchisement Beth A. Colgan University of California, Los Angeles (UCLA) - School of Law Date Posted: 09 Jan 2019	103
9.	Is Police Behavior Getting Worse? The Importance of Data Selection in Evaluating the Police Aurelie Ouss and John Rappaport University of Pennsylvania and University of Chicago - Law School Date Posted: 31 Jan 2019 [10th last week]	102
10.	Beyond State v. Loomis: Artificial Intelligence, Government Algorithmization, and Accountability Han-Wei Liu, Ching-Fu Lin and Yu-Jie Chen Monash University, National Tsing Hua University and Institutum Iurisprudentiae, Academia Sinica Date Posted: 20 Jan 2019 [new to top ten]	99