CrimProf Blog

Moore & Hill on Drug Courts

Liz Moore and Michael Hill (University of Tasmania and affiliation not provided to SSRN) have posted Reflections from the ‘Double Figures’ Milestone: A Decade of Therapeutic Jurisprudence in Tasmania. on SSRN. Here is the abstract:

 

This paper is a frontline analysis of ten years of problem-solving courts in Tasmania, Australia (2007-2017), particularly the Drug Court (CMD). Stakeholder input contributes to recommendations for the future of the program.

Broadhurst et al. on Restorative Justice

Roderic Broadhurst, Anthony Morgan, Jason Payne and Ross Maller (Australian National University (ANU), Australian Institute of Criminology, Australian National University (ANU) and Australian National University (ANU) - School of Finance and Applied Statistics) have posted Restorative Justice: An Observational Outcome Evaluation of the Australian Capital Territory (ACT) Program on SSRN. Here is the abstract:

 

The Australian National University and Australian Institute of Criminology were commissioned by the Australian Capital Territory (ACT) Justice and Community Safety Directorate to undertake an impact evaluation of the restorative justice conferencing program. There were two components to this evaluation. The first involved the analysis of surveys of offenders, victims and their support persons conducted by the Restorative Justice (RJ) Unit following each conference. The second involved using criminal history data provided by ACT Policing to conduct an analysis of reoffending among the 1,143 participants in restorative justice conferencing (RJC) compared with 4,668 young offenders dealt with at the same time through the normal process, whose criminal history had been tracked until September 2016.

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SpearIt on The Catholic Church Sex Scandal and the Dying Death Penalty

SpearIt (Texas Southern University - Thurgood Marshall School of Law) has posted The Catholic Church Sex Scandal and the Dying Death Penalty: Issues at the Intersection of Religion, Crime, and Punishment (Published in the State of Criminal Justice, 2019) on SSRN. Here is the abstract:

 

Recent developments in law enforcement and the judiciary reveal the ongoing interconnections between religion, crime, and punishment. In recent months, federal investigators have taken an interest in the Catholic Church in Pennsylvania and have launched an investigation into whether evidence exists of federal criminal law violations. This first-of-its-kind inquiry into the Church poses new challenges for church leaders, particularly because it may place some of its clergy in jeopardy of prosecution. Beyond, the investigation may stoke genuine fear that federal inquiries may spread to other states. In the area of punishment, Washington recently became the twentieth state to abolish the death penalty. As the death penalty continues its decline among states, religious faith and morality have played some role in this development. Exactly how much is uncertain, but there is even greater potential for religious ideas and narrative to influence death penalty reform.

This chapter examines these startling developments, which underscore the ongoing tensions between law and religion.

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Nesbitt on Disrupting Terrorist Threats

Michael Nesbitt (University of Calgary, Faculty of Law) has posted Bill C-59 and CSIS’s 'New' Powers to Disrupt Terrorist Threats: Holding the Charter-Limiting Regime to (Constitutional) Account (Alberta Law Review, Forthcoming) on SSRN. Here is the abstract:

 

On June 21, 2019, Bill C-59, An Act Respecting National Security, received Royal Assent. The Act itself represents a major addition to Canada's national security landscape, arguably the largest and most important since CSIS was first created in 1984. This paper considers one important and surely controversial piece of that Act: the revisions it made to uphold the unprecedented powers that Bill C-51, An Anti-terrorism Act (2015), first gave CSIS to act kinetically--and in limitation of any Charter right or Canadian law--to disrupt threats to national security.

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Patterson et al. on Felon Disenfranchisement

Elizabeth G. Patterson, Julia Bradshaw, Chelsea Evans, Ryan Nash, William Neinast, Louei Nmair, Evan Phillips and Kaitlin Diaz (University of South Carolina School of Law, affiliation not provided to SSRN, affiliation not provided to SSRN, affiliation not provided to SSRN, affiliation not provided to SSRN, affiliation not provided to SSRN, affiliation not provided to SSRN and affiliation not provided to SSRN) have posted Criminal Convictions, Incarceration, and the Right to Vote in South Carolina on SSRN. Here is the abstract:

 

In a democratic society characterized by near-universal suffrage, like the twenty-first century United States, stripping a citizen of the right to vote is an extreme measure, requiring the strongest of justifications. It is generally accepted that denial of the vote to minors and mentally incompetent persons is justified because of their impaired capacity for reasoned decision-making. However, no such agreed-upon justification exists for the widespread denial of the vote to citizens who have been convicted of crimes. Indeed, the scope of what is generally referred to as “felon disenfranchisement” varies widely among states, and does not exist at all in two.

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Quinlan on Euthanasia and Capital Punishment

Michael Quinlan (The University of Notre Dame Australia) has posted 'Such Is Life': Euthanasia and Capital Punishment in Australia: Consistency or Contradiction? on SSRN. Here is the abstract:

 

Lawful euthanasia and capital punishment involve State endorsement of the deliberate, premeditated and intentional termination of a human life. Despite concerted attempts to introduce lawful euthanasia, it has always been unlawful in Australia, apart from a period of less than 9 months, in the Northern Territory. Capital punishments were carried out in Australia between February 1788 and February 1967. It was abolished in the States, Territories and Federally between 1922 and 1985. Australians have demonstrated increasing opposition to the practice overseas. Last year a concerted attempt was made to persuade Indonesia not to execute two Australians who were convicted drug smugglers: Andrew Chan and Myuran Sukumuran.

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Crump on Electronic Monitoring of Youth

Catherine Crump (UC Berkeley, School of Law) has posted Tracking the Trackers: An Examination of Electronic Monitoring of Youth in Practice (UC Davis Law Review, Vol. 53, No. 2, 2019) on SSRN. Here is the abstract:

 

Although vast numbers of young people in the juvenile justice system are subject to electronic monitoring, its rise has occurred with little reflection or evaluation by anyone, including the probation departments that implement it. As a result, we know surprisingly little about electronic monitoring’s practical effects. This Article fills that gap by presenting three findings about juvenile electronic monitoring, grounded in the results of hundreds of public records act requests I filed with probation departments across California. First, while many have hailed electronic monitoring as a potential alternative to incarceration, available evidence suggests it is instead “net widening,” expanding control over young people who would otherwise have received less burdensome terms of release.

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Bolitho on Restorative Justice and Memory Reconsolidation in Victims

Jane Bolitho (University of New South Wales (UNSW) - School of Social Science and Policy) has posted Inside the Restorative Justice Black Box: The Role of Memory Reconsolidation in Transforming the Emotional Impact of Violent Crime on Victims on SSRN. Here is the abstract:

 

This paper is concerned with why and how restorative justice (RJ) works to alleviate the emotional effects of crime on victims. It posits a new explanation for the ‘aha’ moment; the turning point seen in some, though not all, restorative justice conferences where long standing, negative emotions and beliefs that have persistently dogged a victim since the crime event, affecting their ability to enjoy the same everyday activities as in their pre-crime daily life, are seemingly eliminated. Focusing on victim experiences an in-depth analysis of 20 cases collected as part of empirical study into a post-sentencing RJ practice after serious crime shows how a typical restorative process can mimic the conditions needed for ‘memory reconsolidation’, a powerful and adaptive neurobiological mechanism that rewrites emotional memories. The findings suggest that the process of MR is a unique tool in the RJ ‘black box’. While the use of RJ within western criminal justice systems is routine for juvenile offenders following minor crimes, greater attention should be paid to victim focused models in the aftermath of crime experienced traumatically; these include post-sentencing practices.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Opposite of Punishment: Imagining a Path to Public Redemption Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 19 Jun 2019	104
2.	Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States Amy J. Cohen Ohio State University (OSU) - Michael E. Moritz College of Law Date Posted: 17 May 2019	85
3.	Neuroscience, Justice and the 'Mental Causation' Fallacy John A. Humbach Pace University School of Law Date Posted: 17 May 2019	82
4.	An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault Elaine Craig Dalhousie University - Schulich School of Law Date Posted: 20 Jun 2019	66
5.	Liability of Sister Companies and Subsidiaries in European Competition Law Christian Kersting Heinrich Heine University Düsseldorf - Faculty of Law Date Posted: 03 Jun 2019	57
6.	IQ, Culpability, and the Criminal Law’s Gray Area: Why the Rationale for Reducing the Culpability of Juveniles and Intellectually Disabled Adults Should Apply to Low-IQ Adults Adam Lamparello Independent Date Posted: 30 May 2019 [7th last week]	54
7.	Criminal Clear Statement Rules Carissa Byrne Hessick and Joseph Edward Kennedy University of North Carolina School of Law and University of North Carolina Date Posted: 24 May 2019 [6th last week]	53
8.	Democracy, Bureaucracy and Criminal Justice Reform Lauren M. Ouziel Temple University - James E. Beasley School of Law Date Posted: 06 Jun 2019	45
9.	Deliberate Ignorance and the Law Eyal Zamir and Roi Yair Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem Date Posted: 25 Jun 2019 [10th last week]	43
10.	Naira Marley vs. Economic and Financial Crimes Commission: the Extent of Freedom of Expression in Nigeria, and the EFCC’s Inefficiencies—A Legal Opinion. Gbenga Odugbemi Babcock University - School of Law and Security StudiesUniversity of Edinburgh - School of Law Date Posted: 05 Jun 2019 [9th last week]	40

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance Roseanna Sommers and Vanessa K. Bohns University of Chicago - Law School and Cornell University Date Posted: 23 May 2019	528
2.	Beyond Bias: Re-Imagining the Terms of ‘Ethical AI’ in Criminal Law Chelsea Barabas MIT Media Lab Date Posted: 23 May 2019	191
3.	When Plea Bargaining Became Normal William Ortman Wayne State University School of Law Date Posted: 29 May 2019	160
4.	Plea-Bargaining: Socio-Legal Impacts on the Criminal Justice System of Bangladesh Md. Pizuar Hossain and Tureen Afroz East West University and East West University Date Posted: 04 Jun 2019	116
5.	The Opposite of Punishment: Imagining a Path to Public Redemption Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 19 Jun 2019	104
6.	Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States Amy J. Cohen Ohio State University (OSU) - Michael E. Moritz College of Law Date Posted: 17 May 2019	85
7.	Incorporating Collateral Consequences into Criminal Procedure Paul T. Crane University of Richmond School of Law Date Posted: 07 May 2019	79
8.	Big Data Prosecution and Brady Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 07 Jun 2019	79
9.	The Haves of Procedure Ion Meyn University of Wisconsin Law School Date Posted: 22 May 2019 [10th last week]	67
10.	Confrontation After Scalia and Kennedy Michael S. Pardo University of Alabama School of Law Date Posted: 17 May 2019 [9th last week]	66

Podgor on Cryptocurrencies and Securities Fraud

Ellen S. Podgor (Stetson University College of Law) has posted Cryptocurrencies and Securities Fraud: In Need of Legal Guidance on SSRN. Here is the abstract:

 

The specificity of statutes is important when the statute provides for criminal penalties. This Essay examines a cryptocurrency fraud prosecution, looking at the issue of whether cryptocurrency is included in securities fraud statutes. It also looks at proposed legislation that would omit cryptocurrency as a security, but then calls for enhanced regulation and tax relief. Additional clarification is needed to ascertain whether cryptocurrency fraud can be prosecuted under current securities fraud statutes. This Essay questions such prosecutions when the location of key definitions rest within agency regulations. Although specificity may not be needed to account for every imaginable type of fraud, when it comes to cryptocurrencies, Congress needs to provide more direction.

Rossmo & Pollock on Systemic Causes of Wrongful Convictions

Kim Rossmo and Joycelyn Pollock (Texas State University and Texas State University) have posted Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective (Northeastern University Law Review, Vol. 11, No. 2, 2019) on SSRN. Here is the abstract:

 

Wrongful convictions are a form of criminal investigative failure. Such failures are sentinel events that signal underlying structural problems within a weak system environment. Similar to transportation or medical accidents, they are often the result of multiple and co-occurring causes. However, unlike the response to an airplane crash, the criminal justice system typically makes little effort to understand what went wrong. These failures tend to be ignored and systemic reviews are rare. As a consequence, important necessary procedural changes and policy improvements may not occur. In this article, we discuss a National Institute of Justice-funded research project that was designed to develop a more comprehensive understanding of how—as opposed to why— such failures occur. We deconstructed 50 wrongful convictions and other criminal investigative failures in order to identify the major causal factors, their characteristics and interrelationships, and the systemic nature of the overall failure. We focus on the central role played by confirmation bias and other thinking errors.

Roberts on Memory

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

 

It is often claimed that the criminal justice system has not taken sufficient account of the findings of experimental studies that have revealed much about the limitations and vulnerabilities of human memory and cognition. Indeed some have suggested that those responsible for the administration of justice are generally disinterested in what psychologists have to say about the nature of memory and its frailties, and unwilling to consider the adequacy of legal rules and practices in light of what is known about these matters.

Croy on Prosecutorial Ethics During Plea Bargaining

Skylar Croy has posted When 'Ministers of Justice' Violate Rules of Professional Conduct During Plea Bargaining: Contractual Consequences (Georgetown Journal of Legal Ethics, Forthcoming) on SSRN. Here is the abstract:

This Article argues that when a prosecutor — a “ministers of justice” — violates a rule of professional conduct during plea-bargaining, the defendant can void those portions of the agreement that stand in contravention with the violated rule. Violating a rule of professional conduct is almost always against public policy, and plea agreements, like all contracts, can be voided for violations of public policy.

As an anecdote, this Article primarily examines waivers of the right to collateral attack.

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Bedi et al. on Managerial Proclivities to Financially Misreport

Suneal Bedi, Catherine M. Schrand and Eugene F. Soltes (Indiana University - Kelley School of Business, University of Pennsylvania - Accounting Department and Harvard Business School) have posted Managerial Proclivities to Financially Misreport on SSRN. Here is the abstract:

 

We use an experimental survey that includes five financial (mis)reporting scenarios to investigate why managers consider engaging in financial misreporting. In our sample of over 400 experienced managers, we find nearly 60% of managers stating they would likely misreport in at least one of the scenarios. We find that morality and culture — as expressed by both social and professional norms — are the most significant drivers that either enable or inhibit a manager’s stated willingness to misreport. We find little consistent evidence that greater legal sanctions reduce managers’ proclivities to misreport. To the extent we find significant results for managerial attributes and sanctions, they occur in the scenarios that describe an extremely acceptable action or extremely unacceptable action, as assessed in a pretest. Our analysis highlights some of the challenges in designing effective regulatory and organizational strategies to prevent malfeasance.

Biederman on Forensic Science Evidence and Expert Witness Testimony

Alex Biedermann (University of Lausanne) has posted Book Review: Roberts, Paul and Stockdale, Michael (eds), Forensic Science Evidence and Expert Witness Testimony: Reliability Through Reform? (Cheltenham: Edward Elgar Publishing, 2018) on SSRN. Here is the abstract:

 

This volume emerges from the collaboration of two Professors Paul Roberts (Professor of Criminal Jurisprudence, Faculty of Social Sciences, University of Nottingham, UK) and Michael Stockdale (Head of Law and Director of the Northumbria Centre for Evidence and Criminal Justice Studies, Northumbria University, Newcastle, UK). They foster exchanges through the Northumbria Centre for Evidence & Criminal Justice Studies (NCECJS), which is part of Northumbria Law School. Jointly, the Editors gathered a global group of 18 contributors in total (from the UK, Ireland, Switzerland, Malaysia, Australia, Canada and the US). They are all recognised experts in their fields which include the law, forensic science, regulation and policy-making. The volume features 13 chapters that, individually and collectively, demonstrate a rigorously interdisciplinary and international perspective.

Doll & Walby on Institutional Ethnography

Agnieszka Doll and Kevin Walby (McGill University - Faculty of Law and University of Winnipeg) have posted Institutional Ethnography as a Method of Inquiry for Criminal Justice and Socio-Legal Studies (IJCJ&SD 2019 8(1): 147-160) on SSRN. Here is the abstract:

 

Institutional ethnography (IE) is a method of inquiry created by Canadian feminist sociologist Dorothy E. Smith to examine how sequences of texts coordinate forms of organisation. Here we explain how to use IE, and why scholars in criminal justice and socio-legal studies should use it in their research. We focus on IE’s analysis of texts and intertextual hierarchy, as well as Smith’s understanding of mapping as a methodological technique; the latter entails explaining how IE’s approach to mapping differs from other social science approaches. We also argue that IE’s terms and techniques can help examine the textual work undertaken in criminal justice and legal organisations, and reveal how people are governed and ruled by these organisational processes. In the discussion, we summarise how IE can productively contribute to criminal justice and socio-legal studies in the twenty-first century.

Hathaway et al. on Aiding and Abetting in International Criminal Law

Oona A. Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy and Alyssa Yamamoto (Yale University - Law School, Yale University - Law School, Yale University, Law School, Students, Yale University, Law School, Students and Yale University - Law School) have posted Aiding and Abetting in International Criminal Law (Cornell Law Review, Vol. 104, No. 6, 2019) on SSRN. Here is the abstract:

 

To achieve justice for violations of international law such as genocide, torture, crimes against humanity, and war crimes, it is essential to address complicity for international crimes. Beginning in the 1990s, there was a proliferation of international and hybrid criminal tribunals, which sought to hold perpetrators of these crimes accountable and in turn, generated an explosion of international criminal law jurisprudence. Nonetheless, the contours of aiding and abetting liability in international criminal law remain contested. Courts — both domestic and international — have long struggled to identify the proper legal standard for holding actors liable for aiding and abetting even the most serious violations of international law. That confusion has, in turn, produced inconsistent decisions. In the United States, for example, it has resulted in a circuit split, leading many to predict the issue will only be resolved by the U.S. Supreme Court.

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Jones & McGregor on Capital Jurors

Elizabeth N. Jones and Sydney McGregor (Western State College of Law and affiliation not provided to SSRN) have posted Thank You for Your Service: Acknowledging our Inadequate Treatment of Jurors in California's Death Penalty Debate (Criminal Law Journal, California Lawyers Association, Spring 2019, Vol. 19, Issue 2) on SSRN. Here is the abstract:

 

California's justice system has a duty to address the life-altering effects that a capital trial has on its jurors. The state must do more than merely thank its civic-minded citizens for their service and then leave them to process the horrors presented in court alone. As California joins other states with similar gubernatorial death penalty moratoria, consideration must be given to this integral and often overlooked group within the capital punishment process: the jurors.

Prendergast on Vagueness

David Prendergast(School of Law, Trinity College Dublin) has posted Constitutional Control of Vague Criminal Law (2017 DULJ) on SSRN. Here is the abstract:

 

This article concerns the Irish constitutional legality requirement that criminal law be certain and not vague. It does three main things. First, it explains the certainty requirement in terms of fair notice and fair adjudication. Second, it argues that assessing the constitutionality of vagueness in criminal law is typically about the location and effect of the vagueness rather than its magnitude. Third, the article suggests an elemental certainty test for identifying cases of unconstitutional vagueness.