CrimProf Blog

Friday's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which links to papers:

• Caniglia v. Strom: Whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home.
• United States v. Cooley: Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search the respondent, Joshua James Cooley, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.

Killean on Criminalization of Domestic Abuse

Rachel Killean (Queen's University Belfast School of Law) has posted ‘A Leap Forward’? Critiquing the Criminalization of Domestic Abuse in Northern Ireland on SSRN. Here is the abstract:

 

Following in the footsteps of other jurisdictions across the United Kingdom and Republic of Ireland, Northern Ireland is currently taking steps to criminalise ‘domestic abuse’. The proposed offence is strongly influenced by research into ‘coercive control’ a framing popularised by Evan Stark that captures both physical and non-physical forms of abuse. In this article, I introduce the Northern Ireland Domestic Abuse and Family Proceedings Bill, before analysing its likely impacts on victim-survivors. To do so, I draw from three key critiques of criminalisation that have emerged from both reformist and anti-carceral feminist scholarship. First, that implementation will pose practical challenges; second, that criminalisation will result in a range of unintended harms; and third, that criminalisation alone is an ineffective response to domestic abuse. In light of these critiques, I argue for a more holistic response, which considers the underlying social structures and dynamics that contextualise the phenomenon of domestic abuse.

Osler on Criminal Justice Amid the Pandemic

Mark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted Criminal Justice Amid the Pandemic of 2020 on SSRN. Here is the abstract:

 

Tragedy is the very nature of criminal law. Every bit of it is about tragedy, from the pain of the victims to the harm done to offenders through punishment. The enterprise as a whole, even at its best, presents a practical and spiritual challenge to those that work within its dirty, clanking machinery. And then came 2020, bringing with it a pandemic which ravaged prisons, shuts down the courts, and destroyed the economy, especially for the least among us. Like a snow-globe that reveals its nature when shaken, the shocks of 2020 have revealed a striking and unsettling picture of criminal justice in the United States.

This book chapter is a first cut at describing some of that picture. It looks at the impact of the pandemic on prisons and jails, on crime, on its intersection with the killing of George Floyd by Minneapolis police officers, and something more deeply hidden but significant: 2020’s grinding away of the last bits of emotional connection to their work for some of the people who work in this dystopian system.

Killean on Sexual Offence Trials in Northern Ireland

Rachel Killean (Queen's University Belfast School of Law) has posted Sexual Offence Trials in Northern Ireland: The Cultural and Legal Dimensions (Eithne Dowds and Anne-Marie McAlinden, Sexual Violence on Trial (Routledge, 2021, Forthcoming)) on SSRN. Here is the abstract:

 

This chapter introduces the book and the key developments in Northern Ireland that led to its inception. These include the high profile ‘Rugby Rape Trial’ and the subsequent Gillen Review into serious sexual offences in Northern Ireland which collectively stimulated public, policy and academic discussion of the key issues, challenges and reform agendas in addressing and responding to sexual violence. The objectives of the book are: to add a Northern Irish perspective to the literature on investigating and prosecuting sexual violence; to draw from comparative international and domestic contexts and alternative approaches to sexual violence, and; to provide a text that is accessible to both academic and practitioner audiences by incorporating the voices of both in the collection. The chapter explains the legal and policy framework within Northern Ireland governing serious sexual offences and provides an overview of the broader context in terms of national and international reform agendas. The chapter situates the book within wider cultural and legal discourses on sexual violence and highlights the innovative contribution of the collection to the existing literature. Finally, it introduces the chapters that make up the rest of this collection.

Sousa on Drug Courts

Michael D. Sousa (University of Denver Sturm College of Law) has posted Therapeutic Discipline: Drug Courts, Foucault, and the Power of the Normalizing Gaze (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Drug treatment courts represent a paradigm shift in the American criminal justice system. By focusing on providing drug treatment services to low-level offenders with severe use disorders rather than sentencing them to a term of incarceration, drug courts represent a return to a more rehabilitative model for dealing with individuals ensnared by the criminal justice system and away from the retributive model that dictated punishment in the latter half of the twentieth century. The existing scholarship exploring how drug treatment courts function has been largely atheoretical, and past attempts to harmonize theory to drug treatment courts fail to demonstrate how these institutions normalize offenders prior to reintegration into society. Relying on Michel Foucault’s notion of governmentality together with his concepts of “technologies of power” and “technologies of the self,” I develop the analytical framework of “therapeutic discipline” as a more robust lens through which to understand the operation of drug treatment courts nationwide. My contribution of “therapeutic discipline” to the existing literature is bolstered by representative examples of qualitative data taken from a long-term, ethnographic study of one adult drug treatment court.

Bowman on Presidential Pardons and Impunity

Frank O. Bowman III (University of Missouri School of Law) has posted Presidential Pardons and the Problem of Impunity on SSRN. Here is the abstract:

 

This Article considers the reach of the President’s pardon power and its potential employment as one means of creating legal impunity for a President and his personal and political associates. It addresses, in particular, the possibility that a President might issue self-interested pardons to himself, family members, or political or business associates. The Article reviews the constitutional origins of the federal pardon power, and the law and practice of its use since the Founding era, and concludes:

A President cannot constitutionally pardon himself, though the point is untested. In theory, a President could resign, or under the Twenty-fifth Amendment withdraw temporarily from the office, transform the Vice President into the President or Acting President, and secure a pardon from the his former subordinate. But that seems improbable.

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Sprick on Predictive Policing in China

Daniel Sprick (Chinese Legal Culture, University of Cologne) has posted Predictive Policing in China: An Authoritarian Dream of Public Security (Naveiñ Reet: Nordic Journal of Law and Social Research (NNJLSR) No. 9 2019) on SSRN. Here is the abstract:

 

China’s public security forces are employing more and more technology in their push for an ‘informatization (信息化)’ of their police work. The application of analytical techniques for solving past crimes or preventing future crimes based on big data analysis is thereby a key component of China’s approach for technology-led policing. China’s holistic policy approach for the purpose of maintaining social stability that is encompassing an ever-growing range of societal issues, the vast investments of its police forces in new technologies and its paramount objective of security, that clearly supersedes inter alia concerns of privacy or transparency, may be considered extremely conducive to the establishment of effective predictive policing in China. This paper however argues, that the application of predictive policing in China is heavily flawed as the systemic risks and pitfalls of predictive policing cannot be mitigated but are rather exacerbated by China’s approach towards policing and its criminal justice system. It is therefore to be expected that predictive policing in China will mainly be a more refined tool for the selective suppression of already targeted groups by the police and does not substantially reduce crime or increase overall security.

Schifalacqua on Interpreting Federal Sentencing Law

John F Schifalacqua has posted A Model for Interpreting Federal Sentencing Law (Northern Kentucky Law Review, Vol. 48, No. 1, 2021) on SSRN. Here is the abstract:

Commentators have long complained that federal courts do not engage in consistent methods of statutory interpretation. Nowhere would consistency be more beneficial than with federal sentencing law. This paper argues that federal judges have amplified discretion and disparity --- two issues the Sentencing Reform Act (SRA) sought to curb --- through interpretive fiat. As judges interpret federal sentencing statutes, the SRA, and the Sentencing Guidelines, judicial discretion grows as malleable canons and theories of statutory interpretation are applied without consistency or a reasoned framework. This inconsistency results in circuit splits which lead to disparity among standards applied to defendants across jurisdictions. As a remedy, this paper proposes a clear model for interpreting federal sentencing law with an eye toward advancing its guiding principles. These principles are synthesized by reviewing the history of the SRA and coalescing the recent development of federal sentencing law into values informed by H.L.A Hart’s theory of punishment, which can both clarify the proper tools of statutory interpretation and guide a court when dealing with textual ambiguity. Ultimately, this paper proposes textually constrained purposivism as the appropriate theory of interpretation for federal sentencing law after reviewing case studies concerning current sentencing ambiguity.

Kinports on Pretrial Custody and Miranda

Kit Kinports (Penn State Law (University Park)) has posted Pretrial Custody and Miranda (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In two recent opinions, Maryland v. Shatzer and Howes v. Fields, the Supreme Court concluded that inmates serving prison sentences were not in custody for purposes of Miranda, in Shatzer’s case while he was living among the general prison population and in Fields’ case while he was undergoing police interrogation. The question addressed in this Article is one that has divided the lower courts in the wake of those two decisions: the impact of the Court’s rulings on the hundreds of thousands of pretrial detainees in this country, many of whom are poor, Black, and Brown.

The Article maintains that the Court’s language and reasoning in Shatzer and Fields, as well as the relevant policy considerations, call for limiting the reach of those opinions to prisoners serving time. The Article therefore concludes that pretrial detainees should be deemed to be in Miranda custody for the duration of their confinement prior to trial. Any other result would allow gamesmanship on the part of prosecutors in making charging decisions and bail recommendations and would enable law enforcement to trade on the coerciveness of pretrial detention to elicit unwarned confessions from suspects who are especially susceptible to the threats and promises that are a leading cause of false confessions and who disproportionately represent communities of color and financially vulnerable populations.

Akbar on Demands for a Democratic Political Economy

Amna A. Akbar (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Demands for a Democratic Political Economy (Harvard Law Review, Vol. 134, No. 1, p. F, 2020) on SSRN. Here is the abstract:

 

We are living in a time of grassroots demands to transform our built environment, our relationships with one another and the earth. To abolish prisons and police, rent, debt, borders, and billionaires. To decommodify housing and health care and to decolonize land. To exercise more collective ownership or, at least, to have more say, over our collectively generated wealth. Some of us are reimagining the state. Others are dreaming of moving beyond it. But these are more than dreams. These are demands for a democratic political economy.

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Onwuachi-Willig & Alfieri on (Re)Framing Race

Angela Onwuachi-Willig and Anthony Victor Alfieri (Boston University School of Law and University of Miami School of Law) have posted (Re)Framing Race in Civil Rights Lawyering (Yale Law Journal, Vol. 130, 2020) on SSRN. Here is the abstract:

 

A review of Henry Louis Gates, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow (Penguin Press, 2019). The Review proceeds in four parts. Part I parses Gates’s analysis of the rise of white supremacist ideology and the accompanying concept of the “Old Negro” during the Redemption era and the countervailing emergence of the concept of a “New Negro” culminating in the Harlem Renaissance. Part II examines the lawyering process as a rhetorical site for constructing racialized narratives and racially subordinating visions of client, group, and community identity through acts of representing, prosecuting, and defending people of color in civil rights, poverty law, and criminal cases. Part III evaluates the permissibility of racialized narratives and racially subordinating visions under what courts like to refer to as colorblind or race-neutral lawyering process traditions and legal ethics conventions, assessing their logic under naturalistic and necessitarian rationales borrowed from the science, literature, and symbolism of Jim Crow segregation excavated by Gates. A wide span of lawyers — criminal prosecutors and public defenders as well as civil rights and poverty lawyers — routinely craft such narratives and images in their work. Part IV puts forward an alternative set of race-conscious advocacy practices and ethics precepts infused by the antisubordination norms of racial dignity and equality garnered from the early black resistance movements documented by Gates for use in contemporary civil rights, poverty law, and criminal cases attacking legal, political, and economic systems of structural inequality.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Redeeming Justice Rachel Lopez, Terrell Carter and Kempis Songster Drexel University Thomas R. Kline School of Law, Villanova University and Amistad Law Project Date Posted: 13 Nov 2020 [new to top ten]	206
2.	Checks and Balances in the Criminal Law Daniel Epps Washington University in St. Louis - School of Law Date Posted: 09 Oct 2020 [3rd last week]	107
3.	Framing Individualized Sentencing for Politics and the Constitution Meghan J. Ryan Southern Methodist University - Dedman School of Law Date Posted: 11 Nov 2020 [new to top ten]	94
4.	Law and Neuroscience Owen D. Jones, Jeffrey D. Schall and Francis X. Shen Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology and University of Minnesota Law School Date Posted: 08 Oct 2020 [6th last week]	87
5.	Sex Crimes: First Edition Corey Rayburn Yung University of Kansas School of Law Date Posted: 04 Nov 2020	83
6.	What Do We Owe Each Other?: An Essay on Law and Society Stephen Morse University of Pennsylvania Law School Date Posted: 30 Oct 2020 [8th last week]	66
7.	#MeToo and Mass Incarceration Aya Gruber University of Colorado Law School Date Posted: 02 Oct 2020 [9th last week]	60
8.	The Aggregation/Culpability Puzzle Larry Alexander University of San Diego School of Law Date Posted: 28 Oct 2020 [new to top ten]	57
9.	Potus and Pot: Why the President May Not (and Should Not) Legalize Marijuana Through Executive Action Robert A. Mikos Vanderbilt University - Law School Date Posted: 30 Sep 2020 [10th last week]	48
10.	Enforcement Against the Biggest Banks David T. Zaring University of Pennsylvania - Legal Studies Department Date Posted: 10 Oct 2020 [new to top ten]	46

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Due Process in a Fee-Driven State Penny White and Glenn Harlan Reynolds University of Tennessee College of Law and University of Tennessee College of Law Date Posted: 17 Sep 2020	1,447
2.	Remote Criminal Justice Jenia Iontcheva Turner Southern Methodist University - Dedman School of Law Date Posted: 08 Oct 2020 [3rd last week]	213
3.	New Environmental Crimes Project Data Shows That Pollution Prosecutions Plummeted During the First Two Years of the Trump Administration David M. Uhlmann University of Michigan Law School Date Posted: 14 Oct 2020 [2nd last week]	203
4.	Prosecutors and Mass Incarceration Shima Baradaran Baughman and Megan S. Wright University of Utah - S.J. Quinney College of Law and The Pennsylvania State University (University Park) – Penn State Law Date Posted: 11 Sep 2020 [5th last week]	160
5.	Traffic Without the Police Jordan Blair Woods University of Arkansas - School of Law Date Posted: 19 Oct 2020 [6th last week]	153
6.	The Law and Science of Eyewitness Evidence Thomas Albright and Brandon L. Garrett Salk Institute for Biological Studies and Duke University School of Law Date Posted: 01 Oct 2020 [7th last week]	125
7.	Forecasting Crime? Algorithmic Prediction and the Doctrine of Police Entrapment Mathew Zaia University of Ottawa - Faculty of Law Date Posted: 28 Oct 2020 [10th last week]	94
8.	Inescapable Surveillance Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 07 Nov 2020 [new to top ten]	93
9.	Money and Punishment, Circa 2020 Anna VanCleave, Brian Highsmith, Judith Resnik, Jeffrey Selbin, Lisa Foster, Hannah Duncan, Stephanie Garlock and Molly Petchenik Yale University - Law School, Arthur Liman Center for Public Interest Law, Yale University - Law School, University of California, Berkeley - School of Law, Fines & Fees Justice Center, Yale University - Law School, Yale University, Law School and Yale University, Law School Date Posted: 12 Oct 2020	93
10.	The Naturalized Epistemology Approach to Evidence Gabe Broughton and Brian Leiter Princeton University and University of Chicago Date Posted: 15 Oct 2020 [new to top ten]	90

Romero on Law Enforcement as Disease Vector

Maybell Romero (Northern Illinois University College of Law) has posted Law Enforcement As Disease Vector (Chicago L. Rev. Online (Nov. 16, 2020)) on SSRN. Here is the abstract:

 

As the outbreak of the novel coronavirus (“COVID-19”) wears on throughout the United States, state and local governments are left to determine—with very little, if any—helpful direction from the federal government, how to proceeding with protecting the health and safety of their residents while also trying to determine if or how to start “opening up” their respective economies. Some of this confusion includes the implementation of a pastiche of executive orders issued by governors around the country, as well as how to enforce such orders.

Some jurisdictions have approached the issue of implementation by aggressively policing populations, arresting individuals for failing to maintain social distancing, failing to wear cloth masks, or flouting quarantine orders. In New York City, as of May 18, 2020, 125 people were arrested for coronavirus-related offenses, while 374 summonses were issued: The vast majority of those arrested or receiving summons were either black of Latinx. The perverse irony of such aggressive policing tactics enforcing practices such as social distancing and wearing masks arises given that such tactics do nothing to encourage the public health mission whatsoever; not only are people faced with the threat of being sent to carceral institutions where conditions allow Covid-19 to run rampant, but the police themselves serve as a vector by which the disease spreads. Police interact very closely and physically in the communities they occupy, often rendering their own infection rates much higher than their jurisdiction’s general population. In turn, because they are more concentrated in both minority and lower-SES neighborhoods, those same officers pose a greater risk, once more, to those communities.

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Lopez et al. on Redemption

Rachel Lopez, Terrell Carter and Kempis Songster (Drexel University Thomas R. Kline School of Law, Villanova University and Amistad Law Project) have posted Redeeming Justice on SSRN. Here is the abstract:

 

Approximately three decades ago, two co-authors of this Article were sentenced to die in prison. According to the United States Supreme Court, this sentence represented a determination that they were irredeemable. This article will interrogate the legal determination that there are some human beings who are incapable of redemption. In doing so, the article grapples with a basic, yet weighty question. Specifically, it examines whether, as a matter of law, the capacity for change is so core to the human condition that all people have an inalienable right to pursue personal redemption. It also documents the dehumanizing effect of codified condemnation and the struggle for humanity in the face of a legal system that has said: you are not worthy.

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Crewe on Women in Prison

Helen Crewe (Nottingham Trent University) has posted Female Prisons Around The World: Facts and Figures about Women in Prison (Mauritius: Lambert Academic Publishing (2020)) on SSRN. Here is the abstract:

 

Around the World there are more women in prison than ever before. Despite statistics, research and various active groups that support women, there is very little published about this topic. The majority of books are published with specific problems in mind, such as ‘mothers in prison’ or about human rights.

The aim of this book is to provide an overview of the conditions and research about women in prison. Even though there has been a higher growth in the number of women, compared to men, this subject has not increased its publications accordingly. Government funding is scarce, university courses do not cover this topic on its own and in some countries there is very little information. A lot can be learned from sharing information and having access to research, facts and figures.

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Calaway et al. on Political Affiliation and Sentencing

Wendy Calaway, Jennifer Kinsley and Taylor Wadian (University of Cincinnati - University of Cincinnati - Blue Ash, Northern Kentucky University - Salmon P. Chase College of Law and University of Cincinnati - University of Cincinnati - Blue Ash) have posted The Rule of Judicial Political Affiliation in Criminal Sentencing Outcomes (Wayne Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Legislative efforts to bring consistency to criminal sentencing outcomes has been much discussed in academic literature and Congressional hearings alike. Despite these efforts disparate sentencing outcomes persist. Researchers have studied many variables seeking to understand these disparities but have been unable to form a consensus around the cause. Perhaps because of the lack of a firm understanding of the issue among researchers, legislative intervention at both the state and federal level has largely failed to address the issue of judicial characteristics that may drive sentencing disparities. As a result, absent from the conversation on criminal sentencing reform is empirical and anecdotal evidence about how judges make determinations within the range of outcomes specified by the legislature. New data on federal sentencing outcomes collected by Harvard researchers, however, finds a direct connection between the political party of the President who appointed the federal judge and the length of a defendant’s sentence. As the Harvard study reports, federal judges appointed by Republican presidents sentence defendants on average to three more months in prison than federal judges appointed by Democratic presidents. Republican-appointed judges in the federal system also sentence black defendants more harshly than Democratic-appointed judges.

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Klein on Nondelegating Death

Alexandra Klein (Washington and Lee University - School of Law) has posted Nondelegating Death (Ohio State Law Journal, Vol. 81 , 2020) on SSRN. Here is the abstract:

 

Most states’ method-of-execution statutes afford broad discretion to executive agencies to create execution protocols. Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s non-delegation and separation of powers doctrines. State courts routinely use the non-delegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts. Despite its uncertain status, the non-delegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of non-delegation. It analyzes state court decisions upholding broad legislative delegations to agencies and identifies common themes in this jurisprudence. This Article positions legislative delegation in parallel with historic and modern execution practices that utilize responsibility shifting mechanisms to minimize participant responsibility in carrying out capital sentences and argues that legislative delegation serves a similar function of minimizing accountability in state-authorized killing.

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Palmiotto on Algorithmic Opacity

Francesca Palmiotto (European University Institute) has posted Regulating Algorithmic Opacity in Criminal Proceedings: an opportunity for the EU Legislator? (Maastricht Law, Faculty of Law WP 2020/01) on SSRN. Here is the abstract:

 

Algorithms are increasingly used in criminal proceedings worldwide for evidentiary purposes and for supporting decision-making. In a worrying trend, these tools are still concealed in secrecy and opacity preventing us from understanding how their specific output has been generated. Many cases demonstrated that software can be biased and that they should not be presumed reliable. The main concern relates to their opacity, as the defence cannot challenge the use of software in criminal proceedings without further insight into their inner workings. This requires an appropriate legal framework creating procedural rules to balance transparency with other legitimate purposes of the criminal process. The paper questions whether the EU legal response on data protection is up to the challenge and which role, if any, the EU legislator should play in regulating algorithmic opacity in criminal proceedings.

Ryan on Individualized Sentencing

Meghan J. Ryan (Southern Methodist University - Dedman School of Law) has posted Framing Individualized Sentencing for Politics and the Constitution (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

 

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment. In recent years, though, the Court has expanded the Amendment to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to prohibit life-without-parole for juveniles when that punishment was mandatorily imposed or imposed on non-homicide offenders. With changing politics and a changing Court, any further expansion of Eighth Amendment protections will likely be difficult for years to come. With the recent nomination of Amy Coney Barrett as the newest Supreme Court Justice, the Court is becoming more conservative. Politics certainly influence law, even at the Supreme Court level, so future changes in politics even outside the Court could affect Eighth Amendment interpretations. When making Eighth Amendment arguments to the Court, framing is important.

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