CrimProf Blog

Didwania on Mandatory Minimum Entrenchment

Stephanie Holmes Didwania (Temple University - James E. Beasley School of Law) has posted Mandatory Minimum Entrenchment and the Controlled Substances Act (Ohio State Journal of Criminal Law, Vol. 18, 2020) on SSRN. Here is the abstract:

 

Since their enactment in the mid-1980s, mandatory minimum sentencing provisions have been a prominent feature of the Controlled Substances Act. Observers argue that these mandatory minimum provisions generate unjustifiably harsh sentences for many federal criminal defendants convicted of drug offenses and significantly contribute to racial inequality in the federal criminal system. This essay describes another important characteristic of these mandatory minimums—their reach beyond cases in which they are actually charged. I call this phenomenon and its attendant institutional framework mandatory minimum entrenchment. Rather than conceptualizing mandatory minimums as a binary component of a defendant’s case that either applies or does not, I argue it is more realistic to confront mandatory minimums as a primary element in a larger sentencing framework.

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Cyphert on Predicting Recidivism

Amy Cyphert (West Virginia University - College of Law) has posted Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk (Forthcoming, Seton Hall Law Review, Vol. 51, 2020) on SSRN. Here is the abstract:

 

The First Step Act, a seemingly miraculous bipartisan criminal justice reform bill, was signed into law in late 2018. The Act directed the Attorney General to develop a risk and needs assessment tool that would effectively determine who would be eligible for early release based on an algorithmic prediction of recidivism. The resulting tool—PATTERN—was released in the summer of 2019 and quickly updated in January of 2020. It was immediately put to use in an unexpected manner, helping to determine who was eligible for early release during the COVID-19 pandemic. It is now the latest in a growing list of algorithmic recidivism prediction tools, tools that first came to mainstream notice with critical reporting about the COMPAS sentencing algorithm.

This Article evaluates PATTERN, both in its development as well as its still-evolving implementation.

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"When Can Police Enter Suspects’ Homes?"

The podcast, available here, discusses Lange v. California. From the introduction:

The case asks whether a police officer violated the Fourth Amendment when he entered the garage of a person suspected of a misdemeanor crime without a warrant while in “hot pursuit” of him. Professor Jeffrey Fisher of Stanford University, who argued the case on behalf of Arthur Lange, and professor Donald Dripps of the University of San Diego Law School, a Fourth Amendment and criminal procedure expert, join host Jeffrey Rosen to discuss the case and its potential implications for policing, privacy, the Fourth Amendment, and more.

Schuman on Revocation and Retribution

Jacob Schuman (The Pennsylvania State University (University Park) – Penn State Law) has posted Revocation and Retribution (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and one-third will eventually have their supervision revoked, sending 350,000 to prison each year. While scholars have long debated the reasons for punishing criminal conduct, however, no one has considered the justifications for revoking community supervision.

This Article is the first to apply punishment theory to revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to punish defendants for their “breach of trust.” Yet the structure, statute, and purpose of supervised release all reflect purely utilitarian goals of deterrence and incapacitation. Although scholars traditionally view courts as the institution most likely to defend criminal defendants against the state, the federal courts have played a key role in expanding the power to punish through the retributive theory of revocation.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Profiling Insurrection: Characterizing Collective Action Using Mobile Device Data David Van Dijcke and Austin L. Wright University of Michigan, Ann Arbor and University of Chicago - Harris School of Public Policy Date Posted: 01 Feb 2021	775
2.	Capitol Offense: Is Donald Trump Guilty of Inciting a Riot at the Capitol? Michael Conklin Angelo State University Date Posted: 27 Jan 2021	487
3.	Federal (De)Funding of Local Police Roger Michalski and Stephen Rushin University of Oklahoma - College of Law and Loyola University Chicago School of Law Date Posted: 19 Jan 2021	246
4.	The U.S. Sentencing Commission’s Recidivism Studies: Myopic, Misleading, and Doubling Down on Imprisonment Nora V. Demleitner Washington and Lee University Date Posted: 23 Jan 2021 [5th last week]	126
5.	Partially Right Means Generally Wrong: Why Some COVID-19 Mitigation Strategies Keep on Failing Jan-Philip Elm and Roee Sarel University of Hamburg and Institute of Law and Economics, University of Hamburg Date Posted: 02 Feb 2021 [new to top ten]	99
6.	Undemocratic Crimes Paul H. Robinson and Jonathan Wilt University of Pennsylvania Law School and United States District Court for the Eastern District of Pennsylvania Date Posted: 30 Jan 2021 [7th last week]	97
7.	In Defense of Moral Credibility Paul H. Robinson and Lindsay Holcomb University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct Date Posted: 01 Feb 2021 [8th last week]	93
8.	The Litigation Landscape of Fraternity and Sorority Hazing: Criminal and Civil Liability Gregory Scott Parks and Elizabeth Grindell Wake Forest University - School of Law and Wake Forest University, School of Law, Students Date Posted: 11 Jan 2021 [9th last week]	85
9.	Policing as a Public Good: Reflecting on the Term 'To Protect and Serve' As Dialogues of Abolition Tracey L. Meares and Gwen Prowse Yale University - Law School and Yale University Date Posted: 20 Jan 2021 [new to top ten]	73
10.	Criminal Law’s Core Principles Paul H. Robinson University of Pennsylvania Law School Date Posted: 10 Feb 2021 [new to top ten]	67

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Fourth Amendment Limits of Internet Content Preservation Orin S. Kerr University of California, Berkeley School of Law Date Posted: 18 Dec 2020	844
2.	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 [new to top ten]	645
3.	The Stress of Injustice: Public Defenders and the Frontline of American Inequality Valerio Baćak, Sarah Lageson and Kathleen Powell Rutgers, The State University of New Jersey - School of Criminal Justice, Rutgers, The State University of New Jersey - School of Criminal Justice and Drexel University - Department of Criminology and Justice Studies Date Posted: 19 Jan 2021 [2nd last week]	446
4.	Policing and 'Bluelining' Aya Gruber University of Colorado Law School Date Posted: 04 Jan 2021 [3rd last week]	343
5.	Separating Crime from Punishment: What India’s Prisons Might Tell Us about Its Criminal Process Abhinav Sekhri Delhi High Court Date Posted: 04 Feb 2021 [4th last week]	219
6.	Risk Assessment Tools in Criminal Justice: Is There a Need for Such Tools in Europe and Would Their Use Comply with European Data Protection Law? Eleftherios Chelioudakis affiliation not provided to SSRN Date Posted: 03 Feb 2021 [5th last week]	217
7.	Can Prosecutors Help To End Mass Incarceration? Rachel E. Barkow New York University School of Law Date Posted: 06 Feb 2021 [6th last week]	214
8.	Bargained Justice: The Rise of False Testimony for False Pleas Andrew Pardieck, Vanessa Edkins and Lucian E. Dervan Southern Illinois University School of Law, Florida Institute of Technology and Belmont University School of Law Date Posted: 29 Jan 2021 [new to top ten]	171
9.	Social Norms in Fourth Amendment Law Matthew Tokson and Ari Ezra Waldman University of Utah - S.J. Quinney College of Law and Northeastern University Date Posted: 09 Feb 2021 [8th last week]	145
10.	'Pistol Shots Ring Out in the Barroom Night': Bob Dylan’s 'Hurricane' as an Exam (or Course) in Criminal Procedure Michael L. Perlin New York Law School Date Posted: 09 Feb 2021 [new to top ten]	135

Sousa on Drug Courts

Michael D. Sousa (University of Denver Sturm College of Law) has posted Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions (14 New York University Journal of Law & Liberty ____ (2021 Forthcoming)) on SSRN. Here is the abstract:

 

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system. These specialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration. Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders. As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.

One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time.

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Crewe on TJ and Babies in Prison

Helen Crewe (Nottingham Trent University) has posted Therapeutic Jurisprudence and Babies in Prison (Forum Prava, 2020. 64(5): 17-23) on SSRN. Here is the abstract:

 

International human rights state that imprisonment for mothers with babies should be used as a last resort. Currently, there is no international agreement for the age limit of children in prison and a lack of consistency with the treatment of this minority population. This article is significant in its advocacy of using a theoretical approach that emphasises the benefits of using legislation, including international human rights frameworks. The premise of Therapeutic Jurisprudence (TJ) is that law influences emotional life and psychological well-being (Winick & Wexler, 2003). Significantly, the duty bearers of the Bangkok Rules (2010) include individuals from non-governmental organisations, local communities and the voluntary sector. This article examines the role of activists who represent the rights of women, practitioners who work in prisons and other potential stakeholders. The significance of this article is its recognition of the need for creating a rights respecting culture in prisons across the globe is complex for babies in prison.

Esoimeme on Money Laundering and Money Mules

Ehi Esoimeme (University of Wales System - Cardiff Law School) has posted Identifying and Reducing the Money Laundering Risks Posed by Individuals Who Have Been Unknowingly Recruited as Money Mules (Journal of Money Laundering Control, Forthcoming) on SSRN. Here is the abstract:

 

Purpose: This paper aims to help build awareness with financial institutions about the money laundering risks posed by individuals who have been unknowingly recruited as money rules and the measures that financial institutions can adopt to detect illicit funds which are being received into the bank accounts of low risk or medium risk customers who are unknowingly recruited as “Money Mules.

Design/Methodology/Approach: The research took the form of a desk study, which analyzed various documents and reports such as a 2019 report on Money Mules by the European Union Agency for Law Enforcement Cooperation (EUROPOL); a 2019 report on Money Mules by the Federal Bureau of Investigation (FBI) and the Better Business Bureau (BBB); the Financial Action Task Force Guidance on the Risk Based Approach to Combating Money Laundering and Terrorist Financing (High Level Principles and Procedures) 2007; the Financial Action Task Force Recommendations 2012; the United Kingdom’s Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017; the United States Federal Financial Institutions Examination Council Bank Secrecy Act/Anti-Money Laundering Examination Manual 2014; Transparency International Corruption Perceptions Index 2018; The UK Proceeds of Crime Act 2002 (as amended); the Joint Money Laundering Steering Group JMLSG, Prevention of money laundering/combating terrorist financing: Guidance for the UK financial sector Part I June 2017 (Amended December 2017); the United States Codified Bank Secrecy Act Regulations (31 CFR); the Nigerian Money Laundering Prohibition Act 2011 (as amended); and the Joint Money Laundering Steering Group JMLSG, Prevention of money laundering/combating terrorist financing: Guidance for the UK financial sector Part II: Sectoral Guidance June 2017 (Amended December 2017).

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Magsaysay on AAPIs and Criminal Justice

Raymond Magsaysay has posted Asian Americans and Pacific Islanders and the Prison Industrial Complex (Michigan Journal of Race & Law, Forthcoming) on SSRN. Here is the abstract:

Recent uprisings against racial injustice, sparked by the killings of George Floyd and others, have triggered urgent calls to overhaul the U.S. criminal “justice” system. Yet Asian Americans and Pacific Islanders, the fastest-growing group in the country, have largely been left out of these conversations. Identifying and addressing this issue, I intercalate AAPIs into powerful, contemporary critiques of the prison industrial complex, including emergent abolitionist legal scholarship. I argue that the model minority myth, an anti-Black racial project, leads to the exclusion of AAPIs in both mainstream and critical studies of crime and carcerality. I begin the intervention by critiquing the lacuna that exists within Asian American Jurisprudence, specifically the erasure of criminalized AAPIs’ voices and experiences.

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Gould et al. on Failed Prosecutions

Jon B. Gould, Victoria M. Smiegocki and Richard A. Leo (American University - School of Public Affairs, Southern Methodist University - Dedman School of Law and University of San Francisco) have posted Theorizing Failed Prosecutions (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

 

Over the last twenty years, the scholarly field of erroneous convictions has skyrocketed, with multiple articles and books exploring the failures that convict the innocent. However, there has been comparatively little attention to the other side of the coin, failed prosecutions, when the criminal justice system falls short in convicting the likely perpetrator. In this article, we take up failed prosecutions, simultaneously seeking to define its breadth and explain its relation to erroneous convictions. We explore potential hypotheses for the existence of failed prosecutions and then compare those theories to a set of failed prosecutions compiled from a moderately-sized district attorney’s office. With almost no prior research on failed prosecutions, these empirical data help to put meat on the theoretical bones of the concept. In the end, we argue that failed prosecutions and erroneous convictions may be seen as different sides of the same coin of miscarriages of justice. Not only do both reflect significant errors by the criminal justice system, but the sources behind each also appear to be surprisingly similar.

Vazquez & Vladeck on Collateral Relief

Carlos Manuel Vazquez and Stephen I. Vladeck (Georgetown University Law Center and University of Texas School of Law) have posted Testa, Crain, and the Constitutional Right to Collateral Relief (Florida Law Review Forum, Vol. 72, Pp. 10-21) on SSRN. Here is the abstract:

 

In Montgomery v. Louisiana, the U.S. Supreme Court held that state prisoners have a constitutional right to relief from continued imprisonment if the prisoner’s conviction or sentence contravenes a new substantive rule of constitutional law. Specifically, the Court held that prisoners with such claims are constitutionally entitled to collateral relief in state court—at least if the state courts are open to other claims for collateral relief on the ground that their continued imprisonment is unlawful. In our article, The Constitutional Right to Collateral Post-Conviction Relief, we argued that, under two lines of Supreme Court decisions interpreting the Supremacy Clause, states are in fact required to open their courts to claims based on new substantive rules of constitutional law even if the states’ courts do not have jurisdiction to entertain collateral claims as a matter of state law. In their recent article, State Jurisdictional Independence and Federal Supremacy, Professors Ann Woolhandler and Michael G. Collins dispute our reliance on these two lines of Supremacy Clause cases. Specifically, they argue that the Constitution, as originally understood and as interpreted throughout the nineteenth century, gives states discretion to control the jurisdiction of their own courts. This response discusses Professors Woolhandler and Collins’s treatment of these two lines of Supremacy Clause cases, and explains why our previous reading of Montgomery holds.

Colgan on Burdens and the Excessive Fines Clause

Beth A. Colgan (University of California, Los Angeles (UCLA) - School of Law) has posted The Burdens of the Excessive Fines Clause on SSRN. Here is the abstract:

 

A key component is missing from the Eighth Amendment’s excessive fines clause doctrine: who has the burden of proof? This question—which has been essentially ignored by both federal and state courts—is not just a second order problem. Rather, the assignment of burdens of proof is essential to the clause’s enforcement, making it harder—or easier—for the government to abuse the revenue generating capacity of economic sanctions in ways that can entrench poverty, particularly in heavily-policed communities of color.

This Article takes on this question by first sorting through a morass within the U.S. Supreme Court’s due process doctrine as it relates to assessing the fundamental fairness of procedural practices, including the assignment of burdens of proof.

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Dsouza on Consent and Criminal Law

Mark Dsouza (University College London - Faculty of Laws) has posted The Power to Consent and the Criminal Law on SSRN. Here is the abstract:

 

I examine what it is to have the ability to validly consent, and conclude that it is a Hohfeldian power. On that basis, I argue that the necessary conditions for the grant of consent must include all the necessary conditions for the exercise of a power. Using this idea, I attempt to isolate context-independent minimum conditions necessary for the grant of consent. I argue that the grant of consent requires an exercise of volition - the making of a choice - and that there exists no general requirement either that this choice be to invite a boundary crossing rather than merely to permit it, or that the choice invariably be accompanied by a performative token. Furthermore, I argue that the power to consent cannot be exercised so as to have retrospective effect. At most, the expectation of ratification may give rise to an entitlement to a supervening defence.

Dekker & Feigenson on Visual Presentations in Dutch Interrogations

Mariska Dekker and Neal Feigenson (affiliation not provided to SSRN and Quinnipiac University - School of Law) have posted Visual Presentations in Dutch Police Interrogations (Arizona Journal of International and Comparative Law, Vol. 37, No. 2, 2020) on SSRN. Here is the abstract:

 

This paper provides the first published report of the use of visual presentations by investigators during suspect interrogations in the Netherlands. It discusses them in terms of Dutch interrogation law and practice, the psychology of interrogations and confessions, and the psychology of visual evidence.

Stoughton et al. on Police Uses of Force

Seth W. Stoughton, Jeffrey J. Noble and Geoffrey Alpert (University of South Carolina School of Law, Independent and University of South Carolina) have posted Evaluating Police Uses of Force: Table of Contents & Introduction (NYU Press (2021)) on SSRN. Here is the abstract:

 

Police violence has historically played an important role in shaping public attitudes toward the government. Community trust and confidence in policing have been undermined by the perception that officers are using force unnecessarily, too frequently, or in problematic ways. The use of force, or harm suffered by a community as a result of such force, can also serve as a flashpoint, a spark that ignites long-simmering community hostility.

In Evaluating Police Uses of Force, legal scholar Seth W. Stoughton, former deputy chief of police Jeffrey J. Noble, and distinguished criminologist Geoffrey P. Alpert explore a critical but largely overlooked facet of the difficult and controversial issues of police violence and accountability: how does society evaluate individual use-of-force incidents? By leading readers through four different answers to this question — constitutional law, state law, administrative regulation, and community expectations — and by providing critical information about police tactics and force options that are implicated within those frameworks, Evaluating Police Uses of Force helps situate readers within broader conversations about governmental accountability, the role that police play in modern society, and how officers should go about fulfilling their duties.

Malik & Kumar on Bail in India

Lokendra Malik and Shailendra Kumar (Advocate, Supreme Court of India and University of Delhi - Faculty of Law) have posted Personal Liberty vs. Societal Interest: The State of Bail Jurisprudence in India (Taking Bail Seriously - The State of Bail Jurisprudence in India 2020) on SSRN. Here is the abstract:

 

The book is a comprehensive and illustrative work on the Bail jurisprudence that explains the provisions of the law in a lucid, comprehensive and systematic manner. The work is a sincere attempt to present the actual state of bail jurisprudence in the country in the light of recent judicial and constitutional developments. Many important issues pertaining to bail such bail by police, bail by magistrate, regular bail, anticipatory bail, transit bail, cancellation of bail, default bail, constitutional jurisprudence relating to bail etc. have been covered by the learned contributors in this volume. It is a standard reference for Judges, lawyers, In house Counsels, Law firms, students, law professors, researchers and scholars.

Garrett & Slobogin on Police Use of Force

Brandon L. Garrett and Christopher Slobogin (Duke University School of Law and Vanderbilt University - Law School) have posted The Law on Police Use of Force in the United States (German Law Journal (2020), 21) on SSRN. Here is the abstract:

 

Recent events in the United States have highlighted the fact that American police resort to force, including deadly force, much more often than in many other Western countries. This Article describes how the current regulatory regime may ignore or even facilitate these aggressive police actions. The law governing police use of force in the United States derives in large part from the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures. As construed by the United States Supreme Court, the Fourth Amendment provides police wide leeway in using deadly force, making custodial arrests, and stopping and frisking individuals. While state and local police departments can develop more restrictive rules, they often do not. Additionally, the remedies for violations of these rules are weak. The predominant remedy is exclusion of evidence, the impact of which falls primarily on the prosecutor and in any event only has a deterrent effect when evidence is sought. Civil and criminal sanctions have been significantly limited by the Supreme Court, particularly through the doctrine of qualified immunity (applied to individual officers) and the policy or custom defense (applied to municipalities). This minimal regulatory regime is one reason police-citizen encounters in the United States so often result in death or serious bodily harm to citizens, in particular those who are Black. The Article ends with a number of reform proposals.

Scott-Hayward & Fradella on Bail and Pretrial Justice Reform

Christine S. Scott-Hayward and Henry Fradella (California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management and Arizona State University - School of Criminology and Criminal Justice) have posted Advancing Bail and Pretrial Justice Reform in Arizona (Arizona State Law Journal, Vol. 52, 2020) on SSRN. Here is the abstract:

 

This Article assesses Arizona’s pretrial justice reforms to date and suggests some ways to further improve pretrial justice to remedy the fact that 78.5% of the people held in the state’s jails have not been convicted of the crimes for which they were arrested, but rather are awaiting trial. This state of affairs undermines the presumption of innocence while unnecessarily costing the taxpayers of Arizona far too much money. Moreover, it threatens public safety on account of the criminogenic effects of pretrial detention. And finally, the state’s reliance on pretrial risk assessment instruments perpetuates racial and ethnic injustice in the state. The state can address these problems by adopting practices that increase fairness, decrease costs, improve public safety, and minimize racial disparities in criminal justice processes and outcomes.

Yeargain on Prosecutorial Disassociation

Tyler Yeargain (Yale Center for Environmental Law and Policy) has posted Prosecutorial Disassociation (American Journal of Criminal Law, Vol. 46, No. 1, 2020) on SSRN. Here is the abstract:

 

Prosecutors’ associations were first formed in the early twentieth century, as part of a broader move toward professionalizing the practice of prosecution, but they first rose to prominence in the 1960s and 1970s. Law enforcement grants from the federal government, coupled with increased support for “tough-on-crime” policies, installed prosecutors’ associations as powerful forces in state government. In the decades that followed, these associations amassed substantial policymaking power—through their membership on state boards, lobbying, election activities, and involvement in litigation. Despite their power, their presence and activities have largely gone unnoticed, unreported, and undiscussed.

The rise of progressive prosecutors, beginning in the mid-2010s, threatens the policymaking hegemony of prosecutors’ associations.

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