CrimProf Blog

Morley on Sex Work

S. Priya Morley (Promise Institute for Human Rights at UCLA School of Law) has posted The Many Lives of a 'Win': Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society (52 Colum. Hum. Rts. L. Rev. 1240 (2021)) on SSRN. Here is the abstract:

 

The Many Lives of a ‘Win’: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society considers the recent strategic litigation challenging Canada’s criminal laws surrounding sex work as unconstitutional. Although the Supreme Court of Canada struck down the laws, which was hailed as a ‘win’ for sex workers, the Conservative Party subsequently implemented the ‘Nordic model’ of asymmetrical criminalization. The Article traces through this recent history, and argues that although the litigation did not achieve the substantive ‘win’ that its proponents had hoped for, it has made a significant contribution to access to justice in Canada.

Levin on Criminal Law Exceptionalism

Benjamin Levin (University of Colorado Law School) has posted Criminal Law Exceptionalism (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:

 

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of a space of moral clarity, the “criminal justice system” is frequently identified by critical scholars and activists as a space of racial subordination, widespread inequality, and rampant institutional violence.

In this Article, I applaud that critical turn. But, I argue that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance—issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action.

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Solum & Crema on The Original Meaning of Fifth Amendment "Due Process of Law"

Lawrence B. Solum and Max Crema (University of Virginia School of Law and affiliation not provided to SSRN) have posted The Original Meaning of “Due Process of Law” in the Fifth Amendment (108 Va. L. Rev. 447 (2022)) on SSRN. Here is the abstract:

 

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.

Levine et al. on State Constitutional Rights and Unconstitutional Conditions

Kay Levine, Jonathan Remy Nash and Robert A. Schapiro (Emory University School of Law, Emory University School of Law and University of San Diego School of Law) have posted Are State Constitutional Rights for Sale? Protecting State Constitutional Rights from Unconstitutional Conditions (UC Davis Law Review, 2022) on SSRN. Here is the abstract:

 

The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts.

As attention turns to distinctive state constitutional rights, in the context of COVID-19 litigation and more generally, state courts should develop their own state doctrines of unconstitutional conditions, rather than simply reverting to federal unconstitutional conditions analysis.

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Moy on Facial Recognition Technology and Misidentifications

Laura Moy (Georgetown University Law Center) has posted Facing Injustice: How Face Recognition Technology May Increase the Incidence of Misidentifications and Wrongful Convictions (William & Mary Bill of Rights Journal, Vol. 30, No. 2, 2021) on SSRN. Here is the abstract:

 

Does law enforcement use of face recognition technology paired with eyewitness identifications increase the incidence of wrongful convictions in U.S. criminal law? This Article explores this critical question and posits that the answer may be yes. Facial recognition is frequently used by law enforcement agencies to help generate investigative leads that are then presented to eyewitnesses for positive identification. But erroneous eyewitness accounts are the number one cause of wrongful convictions, and the use of face recognition to generate investigative leads may create the conditions for erroneous eyewitness identifications to take place. This is because face recognition technology is designed to query a large database of faces to find lookalikes, and sometimes an innocent lookalike will resemble a suspect so closely that police may mistakenly select that person as an investigative lead, and an eyewitness may be unable to tell the difference between the lookalike and the actual suspect. This Article explores this possible problem and offers policy recommendations to help address it.

Starr on Race-Norming and Statistical Discrimination

Sonja B. Starr (University of Chicago) has posted Race-Norming and Statistical Discrimination: Beyond the NFL on SSRN. Here is the abstract:

 

This Article uses the recent NFL “race-norming” scandal—in which Black players with concussion claims were scored differently on cognitive impairment tests, based on the assumption that they were less intelligent at baseline—as an entry point to a broad-ranging analysis of inconsistencies in the law’s treatment of statistical discrimination. The Supreme Court has emphatically and repeatedly rejected efforts to justify otherwise-illegal discrimination against individuals by resort to statistical generalizations about groups. This doctrine makes practices like the NFL’s not just repugnant, but illegal—yet such practices are pervasive and persistent, in high-stakes settings far beyond the NFL. Similar race-norming in diagnostic algorithms is ubiquitous in medicine, for example, but has avoided legal scrutiny. Moreover, the justice system itself has embraced numerous similar practices, including demographic norming of intellectual-capacity assessments for defendants facing the death penalty, explicit class-based discrimination in criminal justice risk assessments, and the use of race- and sex-specific actuarial data to calculate tort damages. This Article examines these practices, the law governing them, and the reasons for these disconnects between law and practice.

McPherson on International Sex Offender Registration Systems

Lori McPherson (Government of the United States of America - United States Marshals Service (USMS)) has posted Leveraging Information to Prevent Offending Abroad: International Megan's Law and Sex Offender Registration Systems Around the World (Gonzaga Law Review, Vol. 57, No. 2, 2021/22) on SSRN. Here is the abstract:

 

This article discusses in broad terms the longstanding and significant problem of convicted sex offenders traveling internationally to abuse children, and the efforts underway in the United States to prevent such offending behavior. It focuses on how the United States shares information about known offenders when they travel internationally and provides an overview of existing sex offender registration systems around the world. These discussions demonstrate that many nations are in a position to proactively exchange information about known sex offenders with one another to better protect their own countries.

The Article proceeds in seven parts. A general discussion about the problem of the sexual exploitation of children in travel and tourism (SECTT) is found in Part I.

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Opinion on habeas review when post-conviction counsel ineffective

Justice Thomas delivered the opinion of the Court in Shinn v. Martinez Ramirez. Justice Sotomayor dissented, joined by Justices Breyer and Kagan.

Monea on Contempt

Nino Monea has posted Is the Contempt Power Obsolete? (127 Dickinson Law Review __ (2022)) on SSRN. Here is the abstract:

Contempt power has been with us for as long as we’ve had courts in this country. Through summary contempt proceedings, judges may imprison any person they deem insufficiently respectful to the authority of the court—with significantly less due process than a person would be entitled to under any other criminal offense. In theory, this is necessary to maintain order in the court. But in practice, summary contempt power is serially and seriously abused. Judges use incarceration to deal with piddling offenses or seemingly for no real reason at all. This Article argues that the concept of allowing judges nearly unbridled discretion to jail people for rudeness is outdated and should be reformed.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Trouble with Time Served Kimberly Kessler Ferzan University of Pennsylvania Carey Law School Date Posted: 21 Mar 2022 [2nd last week]	257
2.	What Makes a Sex Crime? A Fair Label for Image-based Sexual Abuse Marthe Goudsmit University of Oxford Date Posted: 05 Oct 2021 [3rd last week]	213
3.	Criminal Law Exceptionalism Benjamin Levin University of Colorado Law School Date Posted: 10 May 2022 [new to top ten]	166
4.	Self-Defense Exceptionalism and the Immunization of Private Violence Eric Ruben SMU Dedman School of Law Date Posted: 11 Apr 2022 [new to top ten]	135
5.	Scraping in Cyberspace: Police Entrapment in the Virtual World Mathew Zaia Ontario Superior Court of Justice Date Posted: 17 Apr 2022 [8th last week]	122
6.	Decarceration’s Inside Partners Seema Saifee University of Pennsylvania - Carey Law School Date Posted: 28 Mar 2022 [7th last week]	116
7.	Five Reflections from Four Years of FOSTA/SESTA Kendra Albert Harvard Law School Date Posted: 14 May 2022 [new to top ten]	116
8.	Social Trust in Criminal Justice: A Metric Joshua Kleinfeld, Hadar Dancig-Rosenberg and Hadar Dancig-Rosenberg Northwestern University - Pritzker School of Law and Bar-Ilan UniversityUC Berkeley School of Law Date Posted: 06 Apr 2022 [6th last week]	113
9.	The Prosecutor Lobby Carissa Byrne Hessick, Ronald F. Wright and Jessica Pishko University of North Carolina School of Law, Wake Forest University - School of Law and Independent Date Posted: 17 Apr 2022 [new to top ten]	111
10.	Fatalism and Indifference—The Influence of the Frontier on American Criminal Justice Michael Tonry University of Minnesota - Twin Cities - School of Law Date Posted: 05 Oct 2021 Last Revised: 05 Oct 2021	91

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	'Ruined' Maybell Romero Tulane University Law School Date Posted: 21 Mar 2022	705
2.	The Unconstitutional Police Brandon Hasbrouck Washington and Lee University - School of Law Date Posted: 01 Apr 2022	630
3.	The Just Prosecutor Brandon Hasbrouck Washington and Lee University - School of Law Date Posted: 01 Apr 2022	609
4.	Who Can Protect Black Protest? Brandon Hasbrouck Washington and Lee University - School of Law Date Posted: 01 Apr 2022	594
5.	Antiracism in Action Brandon Hasbrouck and Daniel Harawa Washington and Lee University - School of Law and Washington University School of Law Date Posted: 01 Apr 2022 [6th last week]	496
6.	The Fourth Amendment and General Law Danielle D'Onfro and Daniel Epps Washington University in St. Louis - School of Law and Washington University in St. Louis - School of Law Date Posted: 21 Mar 2022 [5th last week]	479
7.	The Trouble with Time Served Kimberly Kessler Ferzan University of Pennsylvania Carey Law School Date Posted: 21 Mar 2022	257
8.	An Emoji Legal Dictionary Leslie Y. Garfield Tenzer and Ashley Cangro Pace University - School of Law and Elisabeth Haub School of Law at Pace University Date Posted: 09 Feb 2022	219
9.	Criminal Law Exceptionalism Benjamin Levin University of Colorado Law School Date Posted: 10 May 2022 [new to top ten]	166
10.	Charging Time Pamela R. Metzger and Janet C. Hoeffel Southern Methodist University - Dedman School of Law and Tulane University - Law School Date Posted: 15 Mar 2022 [9th last week]	138

Levine on Diversion and Victims' Rights

Kay Levine (Emory University School of Law) has posted Victims' Rights in the Diversion Landscape (SMU Law Review, Vol. 74, No. 3, 2021) on SSRN. Here is the abstract:

 

In this Article, I explore the practical and theoretical conflicts that might
surface when the diversion movement and the Victims’ Rights Movement
intersect. I focus on two possible sites of tension: victim input into the diversion
offer and the victim’s right to receive restitution as a term of diversion.
Protocols to give victims greater voice in the justice process have been
a mainstay of the burgeoning Victims’ Rights Movement for the past several
decades, but I argue that those protocols must be understood within
(and thus limited by) the contexts of fiscal responsibility, compassion for
the offender, and proportionality in the justice system that lie at the heart of
diversion schemes. Any other arrangement risks elevating retribution over
rehabilitation and inserts a level of arbitrariness into the diversion process
that would subvert our commitment to fairness and transparency.

Baylor on Anti-Protest Laws

Amber Baylor (Columbia Law School) has posted an abstract of Unexceptional Protest (UCLA Law Review, Vol. 70, No. 3, 2023 Forthcoming) on SSRN. Here is the abstract:

 

Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large-scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws, even in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as anti-protest expansions of public order legislation. The consequences of anti-protest legislation on highly surveilled communities are alarming.

While existing critiques of these laws emphasize the chilling effects on protestor speech, this analysis masks the threat of such legislation outside of mass protest. In actuality, the application of anti-protest legislation is not limited to “exceptional” circumstances, increasing everyday public order, criminal law regulation for Black, Latinx, and other targeted communities.

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Stricot on Factors Behind Sexual Violence Reporting

Maëlle Stricot has posted Understanding the factors behind the (under-)reporting of sexual violence: Evidence from France on SSRN. Here is the abstract:

Using data from the French victimisation survey, this paper explores the determinants of reporting sexual violence to the police. My contribution to the economics of crime and economics of social norms literature is threefold. First, using binary regression models, I show that assault characteristics have higher explanatory power than victim's socio-demographic characteristics on this high-stakes individual decision. This descriptive analysis also highlights the significant influence of victims' social stigmatisation on the decision to file a complaint. Second, I employ a difference-in-difference strategy comparing the reporting rate for sexual and physical violence to analyse the effect of two high-profile sexual assault cases that pictured different representations of victims and the reporting process. On average, I find a 158% drop in sexual violence reporting following the allegations against Dominique Strauss-Kahn in May 2011, compared to a 111% increase after the ones against Harvey Weinstein in October 2017. Third, I provide evidence that changes in opinions and representations about sexual violence seem to be the primary mechanism explaining the increase in sexual violence reporting after the Weinstein case and #MeToo. These results suggest that social norms and representations surrounding sexual violence firmly influence the victim's reporting decision.

Levine et al. on Deflection, Diversion, and Drug Offenders

Kay Levine, Joshua Hinkle and Elizabeth Griffiths (Emory University School of Law, Georgia State University and Rutgers, The State University of New Jersey - Rutgers Law School) have posted Making Deflection the New Diversion for Drug Offenders (Ohio State Journal of Criminal Law, Vol. 19, No. 1, 2022) on SSRN. Here is the abstract:

 

In this paper we argue that prosecutors ought to embrace deflection programs for substance users who commit low-level offenses. Deflection programs provide services to substance users and other vulnerable populations before, or outside of, the point of arrest. They offer participants voluntary admission and wrap-around services to help them get back on their feet – out from under the threat of incarceration if they relapse. Innovators have embraced the term “deflection” because the goal is to keep the substance user out of the justice system entirely, and to provide a warm handoff to service providers instead of a cold transport to county jail.

The benefits of prosecutor involvement are numerous.

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Monea on Unequal Treatment of Indigent Defendants

Nino Monea has posted Low Income, Poor Outcome: Unequal Treatment of Indigent Defendants (Wayne Law Review, Vol. 67, No. 2, 2022) on SSRN. Here is the abstract:

It is no secret that the law treats poor people worse than rich ones. This is true in criminal law and everywhere else. But some laws do not simply result in disparate impact upon the poor—the way they are written explicitly targets or disadvantages the poor. This Article examines the spectrum of expressly biased laws in four major categories. First, laws that criminalize poverty: bans on poor housing or no housing, traffic laws that require nothing more than paying for things, and cash bail that imprisons people without access to credit. Second, courts impose an enormous number of unwaivable fees at every step of the criminal justice system, and failure to pay results in incarceration—a modern day debtor prison. Third, many criminal procedure rules place the needy on unequal footing. Only indigent defendants are required to suffer reduced expectations of privacy, disclose certain information, face judicial scrutiny, endure low caps on what their attorneys can be paid, or go into hearing without an attorney. And fourth, after conviction, these defendants face unique hurdles to recover for wrongful imprisonment or expensive expungement processes.

Ahmed on Bargaining for Abolition

Zohra Ahmed (University of Georgia School of Law) has posted Bargaining for Abolition (Fordham Law Review, Vol. 90, No. 5 (2022)) on SSRN. Here is the abstract:

 

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? I offer three different ways to think about labor in criminal court: (1) labor as a source of sociological value, (2) labor as an input that generates certain measurable outcomes, and (3) labor as a vehicle to advance abolitionist reforms. First, through their quotidian activities, criminal courts’ workers enact a practical philosophy that communicates lessons about who and how we value each other. Drawing on ethnographic accounts, I argue that criminal courts’ actors—prosecutors and judges, among others—engage in “violence work.” The violence is not only physical but also social and structural. Their labor weakens social bonds and entrenches group-level hierarchies, expressed as race, class, and ability.

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Elyassi on Dataficiation and Sentencing

Gil Rothschild Elyassi has posted The Datafication of Law: How Technology Encodes Carceral Power and Affects Judicial Practice in the United States (Law and Social Inquiry, Vol. 47, No. 1, 2022) on SSRN. Here is the abstract:

This inquiry explores how data analyses about US Federal sentences have transformed sentencing practice beginning in the mid-1980s. I consider this inquiry an early case of the datafication of law, a pervasive process that translates legal practice into data and embeds it in digital networks so it can be tracked and analyzed in real time. To explore datafication historically and in relation to legal practice and power, I consider it not as an objective and passive undertaking but, rather, as an ideological and performative process that encodes and enacts normative presumptions and desirable futures. The empirical inquiry traverses “levels of analysis” and thus bridges prominent perspectives in sociolegal research. In so doing, I identify four mechanisms that mediate “large-scale” processes and “local” practices: field assembly, symbolic projection, material inscription, and boundaries spanning. Substantively, I show how datafication has not simply described, but also transformed, sentencing practice according to a colorblind-carceral imaginary that strives to fix the present in place. By relentlessly translating decisions into data forms that derive from this carceral imaginary, datafication affects judicial action and partakes in sustaining legacies of oppression. Yet, like other technologies, datafication also reveals dialectic dimensions in opening up to new actors and subjecting its ideological underpinnings to contestation and change.

Harris on Misdemeanor Cash Bail and Excessive Fines

Barnett Harris has posted Is Misdemeanor Cash Bail an Unconstitutional Excessive Fine? (2021 Pepp. L. Rev. 72 (2022)) on SSRN. Here is the abstract:

“[H]ere we are in 2018 . . . still litigating incorporation of the Bill of Rights. Really? Come on . . . .”
– Supreme Court Justice Neil Gorsuch

“[O]ur bail system—excuse the expression—is totally ass-backwards in every respect.”
– New York Court of Appeals Chief Judge Jonathan Lippman

The Excessive Fines Clause is one of the least developed clauses pertaining to criminal procedure in the Bill of Rights. In fact, the Supreme Court has only interpreted the Clause a few times in its entire history. Yet, on any given day, hundreds of thousands of people languish in jails without having been convicted of anything, because most of these people are unable to meet the bail amount a judge sets.

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Joh on Ethical AI in American Policing

Elizabeth E. Joh (University of California, Davis - School of Law) has posted Ethical AI in American Policing (NOTRE DAME JOURNAL ON EMERGING TECHNOLOGIES 2022) on SSRN. Here is the abstract:

 

We know there are problems in the use of artificial intelligence in policing, but we don’t quite know what to do about them. One can also find many reports and white papers today offering principles for the responsible use of AI systems by the government, civil society organizations, and the private sector. Yet, largely missing from the current debate in the United States is a shared framework for thinking about the ethical and responsible use of AI that is specific to policing. There are many AI policy guidance documents now, but their value to the police is limited. Simply repeating broad principles about the responsible use of AI systems are less helpful than ones that 1) take into account the specific context of policing, and 2) consider the American experience of policing in particular. There is an emerging consensus about what ethical and responsible values should be part of AI systems. This essay considers what kind of ethical considerations can guide the use of AI systems by American police.