CrimProf Blog

"Special IDs for Sex Offenders: Safety Measures or Scarlet Letters?"

From The New York Times, reporting on a pending cert petition regarding a law struck down on First Amendment grounds by the Louisiana Supreme Court:

A Louisiana law required people convicted of sex crimes to use driver’s licenses on which the words “sex offender” would appear in big capital orange letters under their photographs.

That could make everyday encounters — with bank tellers, hotel clerks, supermarket cashiers, election officials, airport security officers and prospective employers — humiliating. Critics called the notation a modern-day scarlet letter. State officials said it kept the public safe from predators.

. . .

The petition gave examples of why state ID cards should bear the notation, some more compelling than others. “People trick-or-treating on Halloween may need a quick way to verify that their children are safe from predators,” the brief said, though asking to see ID before accepting candy is not commonplace.

Algorithms in Criminal Justice

Law Commission of Ontario has posted The Rise and Fall of Algorithms in American Criminal Justice: Lessons for Canada on SSRN. Here is the abstract:

Artificial intelligence (AI) and algorithms are often referred to as “weapons of math destruction.” Many systems are also credibly described as “a sophisticated form of racial profiling.” These views are widespread in many current discussions of AI and algorithms.
The Law Commission of Ontario (LCO) Issue Paper, The Rise and Fall of Algorithms in American Criminal Justice: Lessons for Canada, is the first of three LCO Issue Papers considering AI and algorithms in the Canadian justice system. The paper provides an important first look at the potential use and regulation of AI and algorithms in Canadian criminal proceedings. The paper identifies important legal, policy and practical issues and choices that Canadian policymakers and justice stakeholders should consider before these technologies are widely adopted in this country.

"As Battle Against Virus Wanes, Mayors Confront a New Challenge: Crime"

From The New York Times:

Arnitta Holliman directs Milwaukee’s Office of Violence Prevention, a unit within the public health department that was hailed for its role in the steep decline in homicides from 2016 to 2019. She attributed the current upswing in part because of growing access to weapons — Wisconsin shattered its previous record for gun sales last year — and the destabilizing effect of the pandemic.

“There are a myriad of issues that play into why we see higher levels of violence — poverty, food insecurity and other related issues,” she said, “and, of course, Covid.”

. . .

Tough-on-crime stances, once widely popular with voters, have had diminished support as the country has confronted disparities in the criminal justice system. Even without the consequences, criminal justice experts have questioned their effectiveness.

Opinion limiting plain-error relief in felon-in-possession cases

Justice Kavanaugh delivered the opinion of the Court in Greer v. United States. Justice Sotomayor concurred in part and dissented in part.

Opinion limiting crack-cocaine offenders eligible for sentence reductions

Justice Thomas delivered the opinion for the Court in Terry v. United States. Justice Sotomayor concurred in part and concurred in the judgment.

Wexler on Creating a Therapeutic Justice Culture

David B. Wexler (University of Puerto Rico - School of Law) has posted Creating a Therapeutic Justice Culture ([2021] SAL Practitioner 20) on SSRN. Here is the abstract:

 

This is a short essay designed to introduce readers--especially judges, lawyers, mental health and related professionals, and of course students--to the area of therapeutic jurisprudence (TJ). It explains TJ, its development in the area of mental health law, its conceptual framework, and its expansion to many other areas of the law, such as criminal law, family law, and the like, and it notes the importance of the overall TJ community and its resources to the continued development of the area.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime Ira Mark Ellman Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley Date Posted: 01 Apr 2021	491
2.	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	350
3.	Constraining Criminal Laws F. Andrew Hessick and Carissa Byrne Hessick University of North Carolina School of Law and University of North Carolina School of Law Date Posted: 28 Apr 2021 [4th last week]	164
4.	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]	106
5.	Race-Based Remedies in Criminal Law Ion Meyn University of Wisconsin Law School Date Posted: 22 Apr 2021	106
6.	Gender Violence, the Carceral State, and the Politics of Solidarity Deborah M. Weissman University of North Carolina School of Law Date Posted: 11 Mar 2021 [7th last week]	93
7.	The Modern Common Law of Crime Robert Leider George Mason University - Antonin Scalia Law School, Faculty Date Posted: 06 Apr 2021 [10th last week]	91
8.	Race, History, and Immigration Crimes Eric S. Fish University of California, Davis - School of Law Date Posted: 19 Apr 2021	87
9.	Disability Law and HIV Criminalization Joshua Blecher-Cohen Yale Law School Date Posted: 07 May 2021	87
10.	Objectives and Applicability of the POCSO Act, 2012 Explained Through Cases Neelakshi Bhaskar and Neolexvision Blogs Guru Gobind Singh Indraprastha (GGSIP) University - Vivekananda Institute of Professional Studies (VIPS) and Aequitas Victoria Foundation Date Posted: 24 Apr 2021 [new to top ten]	79

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Rethinking Police Expertise Anna Lvovsky Harvard Law School Date Posted: 19 Apr 2021 [2nd last week]	234
2.	Racial Segregation and the Data-Driven Society: How Our Failure to Reckon with Root Causes Perpetuates Separate and Unequal Realities Rashida Richardson Northeastern University School of Law Date Posted: 24 May 2021 [new to top ten]	202
3.	Report of the Willamette University College of Law Racial Justice Task Force on the Use of Peremptory Challenges during Criminal Jury Selection in Oregon Brian Gallini, Samantha Klausen and Eden Vasquez Willamette University - College of Law, Willamette University and Willamette University Date Posted: 14 Apr 2021	140
4.	A Three-Pillar Approach to Achieving Trustworthy Use of AI and Emerging Technology in Policing in England and Wales: Lessons From the West Midlands Model Marion Oswald University of Northumbria at Newcastle Date Posted: 13 Apr 2021	124
5.	Government Misconduct and Convicting the Innocent, The Role of Prosecutors, Police and Other Law Enforcement Samuel R. Gross, Maurice Possley, Kaitlin Roll and Klara Stephens University of Michigan Law School, affiliation not provided to SSRN, affiliation not provided to SSRN and affiliation not provided to SSRN Date Posted: 13 Nov 2020	119
6.	The Feminist Script for Punishment I. India Thusi Widener University - Delaware Law School Date Posted: 12 May 2021	109
7.	Punitive Surveillance Kate Weisburd George Washington Law School Date Posted: 22 Mar 2021	103
8.	The Harms of Police Surveillance Technology Monopolies Elizabeth E. Joh and Thomas Wuil Joo University of California, Davis - School of Law and University of California, Davis - School of Law Date Posted: 27 Apr 2021 [9th last week]	94
9.	Jailhouse Immigration Screening Eisha Jain University of North Carolina School of Law Date Posted: 20 Apr 2021 [10th last week]	90
10.	A Primer on Risk Assessment for Legal Decisionmakers Christopher Slobogin Vanderbilt University - Law School Date Posted: 19 Apr 2021 [new to top ten]	70

"Va. governor signs probation reform bill"

From WTOP, via the NACDL's News of Interest:

Virginia Gov. Ralph Northam signed a bill Thursday that aims to reduce the number of people behind bars for probation violations.

“Too many people are in prison not because of the original crime they committed, but because once they were out on probation, they did something that caused the court to revoke their probation and send them back to prison,” Northam said at the signing ceremony in Richmond.

Until now, Virginia was one of seven states that didn’t limit probation sentences, which resulted in a disproportionate number of people of color being sent back to prison after serving their original sentences.

The bill, HB 2038, authored by Del. Don Scott, limits adult probation sentences to a maximum of one year for a misdemeanor, and five years for a felony.

Sacharoff on The Broken Fourth Amendment Oath

Laurent Sacharoff (University of Arkansas School of Law) has posted The Broken Fourth Amendment Oath (Stanford Law Review, Vol. 74, 2022) on SSRN. Here is the abstract:

 

The Fourth Amendment requires warrants be supported by “oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant based entirely on the third-hand account of an informant. But this article shows that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the “oath,” by its very nature, requires a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones v. United States that a warrant could rely upon “hearsay”—radically altering criminal investigations. But Jones rested entirely on policy preferences, ignoring the text, original understanding, and the rich contrary precedent.

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Koh on Othering Across Borders

Steven Arrigg Koh (Boston College Law School) has posted Othering Across Borders (70 Duke L.J. Online 161 (2021)) on SSRN. Here is the abstract:

 

Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.

Austin & Slane on Access to Digital Information

Lisa M. Austin and Andrea Slane (University of Toronto - Faculty of Law and University of Ontario Institute of Technology (UOIT), Legal Studies) have posted Digitally Rethinking Hunter v Southam on SSRN. Here is the abstract:

 

Canadian debates about lawful access -- the legal regime that authorizes various methods used by law enforcement to intercept and/or search or seize information for investigatory purposes -- need a new solution space for the digital age, one that is able to incorporate new technological solutions for minimizing rights-infringements and to provide new forms of accountability and safeguards against misuse. However, this is not simply a matter of adopting the popular framework of “privacy by design”, or even a reworked “lawful access by design”. We argue that an appreciation of the challenges of the digital world require us to rethink our basic constitutional framework. The Canadian constitutional framework for lawful access was set out by the Supreme Court in Hunter v Southam and then refined in the subsequent jurisprudence. We argue that this framework is ill-suited to contemporary digital challenges to informational privacy and requires four fundamental shifts. First, its basic point-of-collection focus needs to shift to the broader life-cycle of the data. Second, it needs to shift away from its categorical approach to informational privacy, where some categories of information are thought to be inherently more private than others, and instead approach informational privacy in terms of the use-context of the data. Third, this framework needs to shift away from a dominant focus on privacy and recognize a broader set of rights and interests at stake in lawful access practices, including the rule of law, equality, and other fundamental freedoms. Fourth, this framework needs to shift away from its exclusive focus on procedural safeguards at the point-of-collection (e.g. the warrant requirement) and consider procedural, legislative, and technical safeguards throughout the life-cycle of the data as well. Once we have a constitutional framework that is better able to address the digital era then we can more precisely craft new techniques for protecting rights, ensuring accountability, and safeguarding against abuse within this framework. Indeed, we can then see why some of these techniques are constitutional requirements. The pay-off for doing so, we argue, is a way of enabling specific justified uses of data by law enforcement, while safeguarding the data against non-justified uses over its life-span.

Findley on Statistics in Forensic Science

Keith A. Findley (University of Wisconsin Law School) has posted The Absence or Misuse of Statistics in Forensic Science as a Contributor to Wrongful Convictions: From Pattern Matching to Medical Opinions About Child Abuse (125 Dickinson L. Rev. 615 (2021)) on SSRN. Here is the abstract:

 

The new scrutiny that has been applied to the forensic sciences since the emergence of DNA profiling as the gold standard three decades ago has identified numerous concerns about the absence of a solid scientific footing for most disciplines. This article examines one of the lesser-considered problems that afflicts virtually all of the pattern-matching (or "individualization") disciplines (largely apart from DNA), and even undermines the validity of other forensic disciplines like forensic pathology and medical determinations about child abuse, particularly Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT). That problem is the absence or misuse of statistics. This article begins by applying basic statistical principles to pattern-matching disciplines to demonstrate how those disciplines have historically hidden or failed to reckon with the probabilistic nature of their judgments, and how, when they have acknowledged the probabilistic nature of their claims, they have often botched the statistical analyses. The article then does a deeper dive into showing how those same deficiencies apply to medical opinions about child abuse, particularly SBS/AHT.

Hauser on Funding Public Defense

Jay Hauser (University of Pennsylvania Law School - Student/Alumni/Adjunct) has posted Funding the Unfunded Non-Mandate: An Equal Justice Case for Adequate Funding of Public Defense (University of Pennsylvania Journal of Law and Social Change, Forthcoming Volume 25 (2021-2022)) on SSRN. Here is the abstract:

 

Federal and state courts have failed to fully address inadequate funding for public defenders as a hurdle to the right to effective assistance of counsel—as opposed to the right to mere assistance of counsel. Courts view denials of this right as due process violations and embark on individualistic analyses. However, precedent indicates that equal protection, which is inherently comparative and provides for a more systemic lens, also comes into play with the right to be represented by an attorney when facing the full weight of the criminal justice system. By reframing the issue and moving the discussion from due process to equal protection, advocates seeking relief for public defender offices and their clients can take advantage of—and reframe court understanding of—studies demonstrating that, as currently funded, public defenders cannot adequately represent their clients in line with their ethical obligations.

Friedman on Sentencing MS-13 Juvenile Homicide Cases

Raphael A. Friedman has posted Roper, Graham, Miller, & the MS-13 Juvenile Homicide Cases (NYU Annual Survey of American Law, Forthcoming) on SSRN. Here is the abstract:

The majority of MS-13 suspects arrested for murder on Long Island in recent years have been minors. This shocking and tragic phenomenon raises vexing issues for law enforcement, the courts, politicians, educators, and all citizens in communities plagued by gang violence. This Note focuses on a single legal issue: in light of recent Supreme Court cases, beginning with the 2005 landmark ruling in Roper v. Simmons, how should judges impose sentences on persons convicted of committing homicide before their eighteenth birthday? Although we will see that the holdings of the three leading Supreme Court cases addressing this question are reasonably clear, many challenging questions remain for sentencing judges who attempt to faithfully apply these decisions. This Note will explore some of these issues through the prism of MS-13 juvenile-homicide cases, using the sentencing of Josue Portillo for his quadruple murder when he was 15 years-old, as a case study.

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Bismuth et al. on The Transnationalization of Anti-Corruption Law

Regis Bismuth, Philip M. Nichols and Jan Dunin-Wasowicz (Sciences Po Law School (Ecole de Droit de Sciences Po), University of Pennsylvania -- Department of Legal Studies and Business Ethics and affiliation not provided to SSRN) have posted The Transnationalization of Anti-Corruption Law: An Introduction and Overview ((Routledge 2021), pp. 1-27) on SSRN. Here is the abstract:

 

The last twenty years have witnessed an astonishing transformation: the fght against corruption has grown from a handful of local undertakings into a truly global effort. Law occupies a central role in that effort and this timely book assesses the challenges faced in using law as it too morphs from a handful of local rules into a global regime.

The book presents the perspectives of a global array of scholars, of policy makers, and of practitioners. Topics range from critical theoretical understandings of the global regime as a whole, to regional and local experiences in implementing and infuencing the regime, including specifc legal techniques such as deferred prosecution agreements, addressing corruption issues in dispute resolution, whistleblower protection, civil and administrative prosecutions, as well as blocking statutes.

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Today's criminal law/procedure cert grant

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

• Federal Bureau of Investigation v. Fazaga: Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.

Feldbrin on Procedural Categories

Ramon Feldbrin has posted Procedural Categories (52 Loyola University Chicago Law Journal 707 (2021)) on SSRN. Here is the abstract:

Procedural law is organized around the assumption that different categories of rules apply to different categories of cases. We internalize this idea at an early stage of our legal education and learn to treat the categories of civil, criminal, and administrative procedure as natural and sacrosanct. Unwittingly we imprison our theorizing, our rulemaking, and our practice within their strict bounds. Yet the premise is fundamentally false. The system of procedure is far from static, and the categories are not fixed or unchanging. The various sets of rules reflect nothing more than our latent—but vitally important—beliefs about the proper way to channel disputes into court. Illuminating the evolving nature of these categories, this Article sets out to identify for the first time the ways in which we shape the forms of procedure through the choices we make.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime Ira Mark Ellman Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley Date Posted: 01 Apr 2021	476
2.	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	333
3.	The Invisible Rules That Govern Use of Force Ion Meyn University of Wisconsin Law School Date Posted: 06 Apr 2021	243
4.	Constraining Criminal Laws F. Andrew Hessick and Carissa Byrne Hessick University of North Carolina School of Law and University of North Carolina School of Law Date Posted: 28 Apr 2021	159
5.	Race-Based Remedies in Criminal Law Ion Meyn University of Wisconsin Law School Date Posted: 22 Apr 2021 [6th last week]	106
6.	Limiting Consent in Criminal Law: DPP v Brown [2018] IESC 67 David Prendergast School of Law, Trinity College Dublin Date Posted: 22 Mar 2021 [7th last week]	105
7.	Gender Violence, the Carceral State, and the Politics of Solidarity Deborah M. Weissman University of North Carolina School of Law Date Posted: 11 Mar 2021 [8th last week]	92
8.	Race, History, and Immigration Crimes Eric S. Fish University of California, Davis - School of Law Date Posted: 19 Apr 2021 [9th last week]	86
9.	Disability Law and HIV Criminalization Joshua Blecher-Cohen Yale Law School Date Posted: 07 May 2021 [new to top ten]	77
10.	The Modern Common Law of Crime Robert Leider George Mason University - Antonin Scalia Law School, Faculty Date Posted: 06 Apr 2021 [9th last week]	74

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Invisible Rules That Govern Use of Force Ion Meyn University of Wisconsin Law School Date Posted: 06 Apr 2021	243
2.	Rethinking Police Expertise Anna Lvovsky Harvard Law School Date Posted: 19 Apr 2021	225
3.	Report of the Willamette University College of Law Racial Justice Task Force on the Use of Peremptory Challenges during Criminal Jury Selection in Oregon Brian Gallini, Samantha Klausen and Eden Vasquez Willamette University - College of Law, Willamette University and Willamette University Date Posted: 14 Apr 2021 [5th last week]	137
4.	A Three-Pillar Approach to Achieving Trustworthy Use of AI and Emerging Technology in Policing in England and Wales: Lessons From the West Midlands Model Marion Oswald University of Northumbria at Newcastle Date Posted: 13 Apr 2021 [7th last week]	121
5.	Government Misconduct and Convicting the Innocent, The Role of Prosecutors, Police and Other Law Enforcement Samuel R. Gross, Maurice Possley, Kaitlin Roll and Klara Stephens University of Michigan Law School, affiliation not provided to SSRN, affiliation not provided to SSRN and affiliation not provided to SSRN Date Posted: 13 Nov 2020 [8th last week]	112
6.	The Feminist Script for Punishment I. India Thusi Widener University - Delaware Law School Date Posted: 12 May 2021 [10th last week]	105
7.	Punitive Surveillance Kate Weisburd George Washington Law School Date Posted: 22 Mar 2021 [new to top ten]	102
8.	Taking Restorative Justice Seriously Adriaan Lanni Harvard Law School Date Posted: 05 Mar 2021 [new to top ten]	91
9.	The Harms of Police Surveillance Technology Monopolies Elizabeth E. Joh and Thomas Wuil Joo University of California, Davis - School of Law and University of California, Davis - School of Law Date Posted: 27 Apr 2021 [new to top ten]	90
10.	Jailhouse Immigration Screening Eisha Jain University of North Carolina School of Law Date Posted: 20 Apr 2021 [new to top ten]	86