CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, May 8, 2021

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Black on Black Representation

Columbia Law School
323
2.

Damned Lies

New York University School of Law
249
3.

Procedure's Racism

University of Alabama School of Law
195
4.

The Invisible Rules That Govern Use of Force

University of Wisconsin Law School
167
5.

Low-Ball Rural Defense

Northern Illinois University College of Law
165
6.

From Statues to Statute: Protests and Vigils in the Time of COVID-19

Sheffield Hallam University
152
7.

Rock and Hard Place Arguments

Cornell University - Law School and Independent
133
8.

The Challenges of Forensic Genealogy: Dirty Data, Electronic Evidence, and Privacy Concerns

American University (Washington, DC) and affiliation not provided to SSRN
104
9.

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

University of Northumbria at Newcastle
103
10.

Government Misconduct and Convicting the Innocent, The Role of Prosecutors, Police and Other Law Enforcement

University of Michigan Law School, affiliation not provided to SSRNaffiliation not provided to SSRN and affiliation not provided to SSRN
102

May 8, 2021 | Permalink | Comments (0)

Friday, May 7, 2021

Henderson on Constitutional Constraints: Adjudication

Stephen E. Henderson (University of Oklahoma - College of Law) has posted Our Constitutional Constraints: Adjudication -- Table of Contents & Excerpt (Amazon (2021)) on SSRN. Here is the abstract:

Suitable for the American law school classroom or self-study, this book is about the criminal attorney—what the federal Constitution says prosecutors and defense attorneys can and cannot do in the adjudication of crime. It is also critically about what those actors _ought_ to do in the adjudication of crime. The text proceeds as chronologically as possible through the process of a prosecution, beginning with pretrial release and the charging decision, considering trial preparation and the right to counsel, turning to the jury and then the defense, stepping back to consider guilty pleas and plea bargaining, and finishing off with double jeopardy and sentencing.

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May 7, 2021 | Permalink | Comments (0)

Flores et al. on Police Violence

Claudia FloresBrian CitroNino GuruliHannah S. AbrahamsMariana Olaizola Rosenblat and Chelsea Kehrer (University of Chicago - Law School, Independent, University of Illinois at Chicago - UIC John Marshall Law School, University of Chicago - Law School, University of Chicago - Law School and University of Chicago - Law School) have posted Global Impunity: How Policy Laws & Policies in the World's Wealthiest Countries Fail International Human Rights Standards on SSRN. Here is the abstract:
 
Every year, tens of thousands of people die at the hands of law enforcement worldwide. George Floyd (USA), Daniel Chibuike (Nigeria), Agatha Felix (Brazil), João Pedro (Brazil), Breonna Taylor (USA), Anderson Arboleda (Colombia), Lacquan McDonald (USA), Eric Garner (USA), Regis Korchinski-Paquet (Canada), Silvia Maldonado (Argentina), Diego Cagliero (Argentina), Yair Lopez (Mexico), Cédric Chouviat (France), Kumanjayi Walker (Australia)—the ever-growing list of lives lost to law enforcement reveals a dysfunction in the nature of policing that is global in scale. In the last year, demonstrators have gathered in cities—from New York to Tokyo, Lagos to Sydney, Cape Town to Paris—demanding reforms to the way police use and abuse force against the communities they serve.

May 7, 2021 | Permalink | Comments (0)

Rulli on Prosecuting Civil Asset Forfeiture on Contingency Fees

Louis S. Rulli (University of Pennsylvania Carey Law School) has posted Prosecuting Civil Asset Forfeiture on Contingency Fees: Looking for Profit in All the Wrong Places (Alabama Law Review, Vol. 72, Pg. 531, 2021) on SSRN. Here is the abstract:
 
Civil asset forfeiture has strayed far from its intended purpose. Designed to give law enforcement powerful tools to combat maritime offenses and criminal enterprises, forfeiture laws are now used to prey upon innocent motorists and lawful homeowners who are never charged with crimes. Their only sins are that they are carrying legal tender while driving on busy highways or providing shelter in their homes to adult children and grandchildren who allegedly sold small amounts of low-level drugs. Civil forfeiture abuses are commonplace throughout the country with some police even armed with legal waivers for property owners to sign on the spot, permanently handing over their cash under intimidating and coercive conditions.

These widespread abuses are attributable to many factors. Backed by strong law-enforcement lobbies, civil forfeiture laws place low burdens of proof on government prosecutors while providing weak protections for property owners. No state provides for a right to counsel in civil forfeiture cases, and default judgments abound, resulting in high percentages of takings that are never tested in the courts. But, most significantly, it is civil forfeiture’s built-in profit motive that fuels persistent abuses as prosecutorial and police budgets benefit directly from the huge amount of forfeiture proceeds amassed each year. So long as civil forfeiture laws direct that all, or most, forfeiture proceeds flow to prosecutors who make the decisions on whether to pursue forfeiture, modest Americans will wrongfully lose their hard-earned property.

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May 7, 2021 | Permalink | Comments (0)

Thursday, May 6, 2021

Okidegbe on Discredited Data

Ngozi Okidegbe (Yeshiva University - Benjamin N. Cardozo School of Law) has posted an abstract of Discredited Data (Cornell Law Review, Vol. 107, (Forthcoming 2022)) on SSRN. Here is the abstract:
 
Jurisdictions are increasingly employing pretrial algorithms as a solution to the racial and socioeconomic inequities in the bail system. But in practice, pretrial algorithms have reproduced the very inequities they were intended to correct. Scholars have diagnosed this problem as the biased data problem: pretrial algorithms generate racially and socioeconomically biased predictions, because they are constructed and trained with biased data.

This Article contends that biased data is not the sole cause of algorithmic discrimination.

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May 6, 2021 | Permalink | Comments (0)

Shestak & Savenkova on International Cooperation in Obtaining Digital Evidence

Viktor Shestak and Polina Savenkova (Moscow State Institute of International Relations (MGIMO) and MGIMO) have posted Features of International Cooperation in Obtaining Digital Evidence: The Experience of European Regulation ( (2021). Theory and Practice of Crime Investigation. IX International Scientific and Practical Conference (15 April 2021)) on SSRN. Here is the abstract:
 
This article examines the legal regulation of obtaining electronic evidence in the law of the European Union, analyzes various legal acts, both current and in the development stage, and also studies the main problems associated with obtaining this type of evidence and ways to resolve them.

May 6, 2021 | Permalink | Comments (0)

Okidegbe on The Democratizing Potential of Algorighms?

Ngozi Okidegbe (Yeshiva University - Benjamin N. Cardozo School of Law) has posted an abstract of  The Democratizing Potential Of Algorithms? (Connecticut Law Review, Forthcoming 2021) on SSRN. Here is the abstract:
 
Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most impacted by their usage, since these algorithms are often procured, adopted, constructed, and overseen without input from these communities.

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May 6, 2021 | Permalink | Comments (0)

Hessick & Hessick on 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) have posted Constraining Criminal Laws (Minnesota Law Review, Vol. 106, No. forthcoming, 2022) on SSRN. Here is the abstract:
 
Most criminal law is statutory. Although the violation of criminal statutes can result in significantly more serious consequences than violations of other types of statutes, the dominant theories of statutory interpretation do not distinguish between criminal statutes and non-criminal statutes. They say that, when interpreting statutes, courts should always be faithful agents aiming to implement the will of the legislature, and that task does not change depending on whether the statute is criminal

This Article shows that treating the interpretation of criminal statutes the same way as other statutes is a major departure from the past. Historically, courts did not simply try to implement the will of the legislature in interpreting criminal statutes; instead, they played a more active role, adopting a package of interpretive rules that constrained the criminal law. The Article argues that courts should once again adopt this historical approach to interpreting criminal statutes in order to reestablish the judiciary as an important check on overly broad criminal laws, promote democratic accountability, and foster important principles of notice and predictability.

May 6, 2021 | Permalink | Comments (0)

Sarat et al. on Lethal Injections

Austin SaratMattea DenneyNicolas Graber-MitchellGreene KoRose Mroczka and Lauren Pelosi (Amherst College, Independent, Amherst College, Independent, Independent and Independent) have posted The Fate of Lethal Injection: Decomposition of the Paradigm and Its Consequences on SSRN. Here is the abstract:
 
This article examines the use of lethal injection from 2010-2020. That period marks the "decomposition" of the standard three drug protocol and the proliferating use of new drugs or drug combinations in American executions. That development is associated with an increase in the number and type of mishaps encountered during lethal injections. This article describes and analyzes those mishaps and the ways death penalty jurisdictions responded, and adapted, to them. It suggests that the recent history of lethal injection echoes the longer history of the death penalty. When states encountered problems with their previous methods of execution, they first attempted to address these problems by tinkering with their existing methods. When tinkering failed, they adopted allegedly more humane execution methods. When they ran into difficulty with the new methods, state actors scrambled to hide the death penalty from public view. New drugs and drug combinations may have allowed the machinery of death to keep running. New procedures may have given the lethal injection process a veneer of legitimacy. But none of these recent changes has resolved its fate or repaired its vexing problems.

May 6, 2021 | Permalink | Comments (0)

Biedermann & Kotsoglou on Forensic Science and Inconclusive Decisions

Alex Biedermann and Kyriakos N. Kotsoglou (University of Lausanne and University of Northumbria at Newcastle - School of Law) have posted Forensic Science and the Principle of Excluded Middle: 'Inconclusive' Decisions and the Structure of Error Rate Studies (Forensic Science International: Synergy, 3, 100147, 2021) on SSRN. Here is the abstract:
 
In a paper published recently in this journal, Dror and Scurich (2020) [20] critically discuss the notions of “inconclusive evidence” (i.e., test items for which it is difficult to render a categorical response) and “inconclusive decisions” (i.e., experts’ conclusions or responses) in the context of forensic science error rate studies. They expose several ways in which the understanding and use of “inconclusives” in current forensic science research and practice can adversely affect the outcomes of error rate studies. A main cause of distortion, according to Dror and Scurich, is what they call “erroneous inconclusive” decisions, in particular the lack of acknowledgment of this type of erroneous conclusion in the computation of error rates. To overcome this complication, Dror and Scurich call for a more explicit monitoring of “inconclusives” using a modified error rate study design. Whilst we agree with several well-argued points raised by the authors, we disagree with their framing of “inconclusive decisions” as potential errors.

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May 6, 2021 | Permalink | Comments (0)

Wednesday, May 5, 2021

Chan and Xiao on Domestic Violence Criminalization in China

Peter Chan and Huina Xiao (City University of Hong Kong (CityUHK) - Centre for Chinese & Comparative Law and Faculty of Law, Macau University of Science and Technology) have posted Weak Criminalization of Domestic Violence in China: Two Key Weaknesses (15 Journal of Comparative Law 2: 88-111 (2021)) on SSRN. Here is the abstract:
 
This article deals with the difficulties that arise from the limited criminalization of domestic violence, in both substantive and procedural terms, by the criminal justice system. Thus, substantive law is weak in at least four respects: the law does not effectively define and punish domestic violence, enforcement provisions in the law are weak and ambiguous, the overall objectives of the substantive law are inconsistent, and the law does not give sufficient guidance to law enforcement agencies in their handling of incidents of domestic violence. In terms of the processes of criminal justice, the frailties are perhaps even more serious. Thus, there is a failure by the police in their law enforcement work to give sufficient weight to domestic violence cases—the police (public security personnel) often consider such cases to be ‘merely’ family matters. A second key weakness is that the provisions of Chinese criminal procedure provide only a very limited deterrence regime regarding domestic violence, as evidenced in the low prosecution rate, the fact that the overwhelming majority of prosecutions and convictions relate to physical forms of domestic violence (so that non-physical forms of domestic violence are basically in practice ignored in the criminal justice system), a less robust approach to police intervention as an instrument of deterrence in less developed areas, and inconsistent conviction and sentencing. Also, the police are not incentivised sufficiently to implement and to enforce the protection order system, perhaps most markedly so in the more underdeveloped areas of China. To a significant extent, this weakness reflects a performance appraisal system that prioritises detection work in what are regarded as more genuinely serious criminal cases. Important too in explaining the problem of limited police impact is the practice of pre-trial cooperation between the police, the procuracy and the courts. Here, the police definition of the situation prevails, with the agencies inclined to allow the police characterisation to prevail. So, in effect, law enforcement agencies combine to restrict access to gender justice.

May 5, 2021 | Permalink | Comments (0)

Johnston & Leahey on M'Naghten's Insane Delusion Rule

E. Lea Johnston and Vincent Leahey (University of Florida Levin College of Law and University of Florida, Levin College of Law, Students) have posted The Status and Legitimacy of M’Naghten’s Insane Delusion Rule (54 UC Davis L. Rev. 1777 (2021)) on SSRN. Here is the abstract:
 
This Article investigates jurisdictions’ compliance with M’Naghten’s directive for how to treat delusions in insanity cases and assesses the validity and reasonableness of courts’ application of the law. Most U.S. jurisdictions employ an insanity test roughly modeled on the rule articulated in the 1843 M’Naghten’s Case. This test focuses on a defendant’s inability to know, because of a mental disease, the nature of her act or its wrongfulness. But the M’Naghten judges also issued a second rule — particular to delusions — that has received much less attention. This rule holds that, when the defendant labors under a “partial delusion only,” her culpability must be assessed as if the factual content of her delusion were true. Thus, if a person with delusions killed as she believed in self-defense, she should be acquitted. But if she killed anticipating future harm, she would be convicted of intentional murder. Commentators have long dismissed the delusion rule as obsolete, and the last examination of states’ use of the rule was sixty years ago.

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May 5, 2021 | Permalink | Comments (0)

Joh & Joo on 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) have posted The Harms of Police Surveillance Technology Monopolies (Denver Law Review Forum, Forthcoming) on SSRN. Here is the abstract:
 
Police today increasingly rely on technologies of surveillance, data collection, inference, and prediction. These technologies include tools like body cameras, license plate readers, data analytics, and predictive crime software. All of them have in common a reliance on artificial intelligence and enormous amounts of digitized data. We can refer to these tools broadly as “police surveillance technologies.” These policing tools are primarily products developed and offered by private companies. The relationship between the private sector and their police customers raises concerns about a hidden and undue influence on an important democratic function. Both of these developments--regarding the role of artificial intelligence in policing and the private sector influence in it--have drawn growing regulatory and academic attention.

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May 5, 2021 | Permalink | Comments (0)

Tuesday, May 4, 2021

O'Hear & Wheelock on Life With or Without the Possibility of Parole

Michael M. O'Hear and Darren Wheelock (Marquette University - Law School and Marquette University Department of Social and Cultural Sciences) have posted Life 'With' or 'Without'?: An Empirical Study of Homicide Sentencing (Journal of Empirical Legal Studies, Forthcoming) on SSRN. Here is the abstract:
 
The number of Americans serving sentences of life without the possibility of parole (“LWOP”) has grown rapidly over the past generation and now exceeds 50,000. Yet, little empirical research has been conducted on the determinants of LWOP sentences. The dearth of research on LWOP sentencing stands in sharp contrast to the many dozens of studies that have been conducted on the determinants of death sentences—studies that have consistently found that race, gender, and other questionable factors may influence sentencing outcomes. The present study is the first to employ a similar methodology to identify both case- and county-level variables that are correlated with the imposition of discretionary LWOP sentences.

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May 4, 2021 | Permalink | Comments (0)

O'Brien on Geofence Warrants as Writs of Assistance

Tim O'Brien has posted New Writs of Assistance: Geofence Warrants and the Fourth Amendment on SSRN. Here is the abstract:

Geofence search warrants, also known as reverse location search warrants, are a new, digital version of the general warrants, or “writs of assistance”, that were at the heart of the Fourth Amendment’s inclusion in the Bill of Rights. Fourth Amendment jurisprudence has been consistently challenged for over a century in the face of technology advancements such as the wiretap, computers, the internet, and mobile phones. But the challenge posed by geofence warrants, in which the government can demand that private sector technology providers disclose a list of mobile devices in a defined place at a defined time, may be the Fourth Amendment’s most vexing encounter yet. When combined with protections provided by the Stored Communications Act, enacted in 1986, it positions the courts as a porous last line of defense between government intrusion and expectations of privacy in the mobile device era.

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May 4, 2021 | Permalink | Comments (0)

King on Aggravating Sentencing Facts After Blakely

Nancy J. King (Vanderbilt University - Law School) has posted HANDLING AGGRAVATING FACTS AFTER BLAKELY: FINDINGS FROM FIVE PRESUMPTIVE-GUIDELINES STATES (forthcoming 99 N.C. L. Rev. ___ (2021)) on SSRN. Here is the abstract:
 
This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range. Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and Alleyne v. United States that frame each state’s practice. This new information is essential for any evaluation of presumptive sentencing guidelines systems or the appropriate scope of the doctrine established in Apprendi v. New Jersey.

May 4, 2021 | Permalink | Comments (0)

Heise & Nance on Student Discipline

Michael Heise and Jason P. Nance (Cornell Law School and University of Florida Levin College of Law) have posted Do Perceptions Become Reality?: Exploring Principals’ Perceptions, Schools’ SRO/Police Presence, and Student Discipline Reporting Policies on SSRN. Here is the abstract:
 
While recent scholarship generally emphasizes how public school principals’ perceptions influence various school safety practices, far less is understood about how principals’ perceptions of school crime risk and academic climate might inform schools’ decisions on specific school safety outcomes, including a school’s SRO/police presence and policies on whether to report student disciplinary incident to law enforcement agencies. Using data drawn from the 2017-18 School Survey on Crime and Safety and 2,500 public schools in the United States, this study examines these questions. The results make clear that the influence of principals’ perceptions vary across different school safety outcomes. Equally important is that the variation appears to be non-random. While the uneven salience of principals’ perceptions does not necessarily dilute their importance to school policies, it does underscore the need for a more granular accounting and understanding of how various important school-level safety outcomes arise.

May 4, 2021 | Permalink | Comments (0)

Ivanov on Redress for Damages from Crimes

This article aims to study international legal instruments that govern the compensation for crime victims in particular countries. In addition, the study aims to conduct a comparative analysis of different approaches to crime victims’ compensation stipulated in the legislation of foreign countries. The obtained results help conclude that approaches to compensation should be improved to comply with modern requirements and compensation methods.

May 4, 2021 | Permalink | Comments (0)

Monday, May 3, 2021

Schlanger on Prison and Jail Civil Rights/Conditions Cases

Margo Schlanger (University of Michigan Law School) has posted Prison and Jail Civil Rights/Conditions Cases: Longitudinal Statistics (Appendix to Slamming the Courthouse Door: 25 Years of Evidence for Repealing the Prison Litigation Reform Act, Prison Policy Initiative (April 26, 2021)) on SSRN. Here is the abstract:
 
The Tables show longitudinal statistics about case filings, features, and outcomes, for jail/prison civil rights and conditions cases and for the entire federal civil docket, grouped by case category.

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May 3, 2021 | Permalink | Comments (0)

Brough on Transportation Subsidies and Failures to Appear

Rebecca BroughMatthew FreedmanDaniel E. Ho and David Phillips (University of Notre Dame, University of California, Irvine - Department of Economics, Stanford Law School and Wilson Sheehan Lab for Econonomic Opportunities, Department of Economics) have posted Can Transportation Subsidies Reduce Failures to Appear in Criminal Court? Evidence from a Randomized Controlled Trial on SSRN. Here is the abstract:
 
The failure to appear (FTA) for a scheduled court hearing can have serious consequences for a criminal defendant. Many have speculated that transportation is a material barrier to court appearance. We provide evidence from the first randomized controlled trial of transportation subsidies to reduce FTAs, conducted jointly with public defenders and the transportation authority in Seattle, Washington. The most intensive intervention was a transit card providing 2-3 months of free public transportation. We find little evidence that transportation subsidies reduce FTAs. The treatment group had a similar FTA rate as the control group, and we can rule out with 95% confidence that transit subsidies reduced the FTA rate by more than six percentage points. While transportation subsidies might be more effective in reducing FTAs if combined with other supportive services or outreach, our results suggest that transportation subsidies alone have limited benefits for this aspect of criminal justice.

May 3, 2021 | Permalink | Comments (0)