CrimProf Blog

Kamens on Statutory Originalism, National Security, and Federal Crimes

Geremy Kamens (Federal Public Defender, Eastern District of Virginia) has posted Statutory Originalism, National Security, and the Definition of Federal Crimes on SSRN. Here is the abstract:

This paper focuses on statutory originalism, the claim that statutes mean what they meant at enactment, to examine two cases implicating national security, and reach a broader conclusion regarding judicial construction of federal crimes. Specifically, the paper analyzes two examples of cases implicating national security where courts construed statutes beyond what they meant at enactment. The first is Hamdi v. Rumsfeld, involving the detention of a citizen as an enemy combatant, and the second is a piracy prosecution. Both cases illustrate how judges rely upon Congressional intent or purpose to validate novel exercises of Executive branch authority notwithstanding statutory originalist meanings to the contrary.

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Chien on The Second Chances Gap

Colleen V. Chien (Santa Clara University - School of Law) has posted The Second Chances Gap on SSRN. Here is the abstract:

 

Over the last decade, dozens of states have enacted “second chance” reforms that increase the eligibility of individuals charged or convicted of crimes to, upon application, shorten or downgrade their past convictions, clean their criminal records, and/or regain the right to vote. While much fanfare has accompanied the increasing availability of “second chances,” less is known about their uptake. This study introduces the concept of the “second chance gap” - the gap between eligibility for and award of certain forms of second chance relief, and sizes it in connection with several initiatives (Obama’s Clemency Initiative, California’s Propositions 47 and 64, and Maryland and Pennsylvania records clearing provisions). It finds approximate uptake rates to be low (less than 20% in most cases) suggesting that among the studied initiatives, the majority of second chances have been missed chances, apparently due to administrative factors like low awareness and high-cost, high-friction application processes and backlog. To narrow second chance gaps and unlock opportunities and equal access to benefits for individuals with criminal histories, this Essay argues, policymakers should embrace automation, burden-shifting, centralization, and consistency in the implementation of second chance laws. Ensuring that the design and administration of second chance laws reflect their intent can help remove the red tape, not steel bars, that stand in the way of second chances.

Manes on Secrecy and Evasion in Police Surveillance Technology

Jonathan Manes (University at Buffalo School of Law, State University of New York) has posted Secrecy & Evasion in Police Surveillance Technology (Berkeley Technology Law Journal, Forthcoming) on SSRN. Here is the abstract:

New technologies are transforming the capabilities of police. Law enforcement agencies now have devices to track our cellphones and software to hack our networks. They have tools to sift the vast quantities of digital silt we leave behind on the internet. They can deploy “big data” algorithms meant to predict where crimes will occur and who will commit them. They have even transformed the humble closed-circuit video camera—and its more recent companion, the body camera—into biometric tracking devices equipped with artificial intelligence meant to pick faces out of a crowd and, eventually, to mine gigabytes of stored footage to automatically reconstruct the comings and goings of anyone they choose to target.

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Asongu et al. on Police, Insecurity, and Homicide

Simplice Asongu, Jacinta C. Nwachukwu and Chris Pyke (African Governance and Development Institute, University of Central Lancashire - Lancashire School of Business and Enterprise and University of Central Lancashire - Lancashire School of Business and Enterprise) have posted The Right to Life: Global Evidence on the Role of Security Officers and the Police in Modulating the Effect of Insecurity on Homicide (Social Indicators Research (Forthcoming)) on SSRN. Here is the abstract:

 

The study investigates the role of security officers and the police in dampening the effect of insecurity on homicides. Insecurity dynamics are measured in terms of access to weapons, violent crime, perception of criminality and political instability. The geographical and temporal scopes are respectively 163 countries and 2010-2015. The empirical evidence is based on Negative Binomial regressions. Three main findings are established. First, security officers and the police significantly lessen the effect of political instability and perception of criminality on homicides. Second, an extended analysis with thresholds suggest that a maximum deployment of security officers and the police is required in order to completely cancel out the impact of both insecurity dynamics on homicides. The concept of threshold represents the critical mass at which the negative conditional effect from the interaction between security officers and the police completely dampens the effect of insecurity dynamics on homicides. Third, the use of security officers and the police is a necessary but not a sufficient condition for the complete eradication of insecurity-related homicides. Policy implications are discussed.

Godsoe on Parental Corporal Punishment

Cynthia Godsoe (Brooklyn Law School) has posted Redefining Parental Rights: The Case of Corporal Punishment on SSRN. Here is the abstract:

Discussions of the constitutional elements of family law have largely focused on adult intimate relationships, yet it was a line of cases about parenthood, not marriage, that first reflected a substantive due process relational protection. Since deciding Meyer in 1923, the U.S. Supreme Court has repeatedly expressed a parent’s fundamental right to raise her child as she sees fit, according parents significant choice in education, medical care, and other aspects of child rearing. In this symposium essay, I argue that this thick conception of parental rights has been overread to shield the only remaining categorical exception to interpersonal violence, parental corporal punishment. Every state has a parental discipline privilege, often little changed since Blackstone’s time. Permissible discipline often goes well beyond “spanking” to include hair-pulling, beatings with belts or sticks, and even choking. Corporal punishment continues to be widely practiced, despite the research consensus demonstrating that it is ineffective at discipline, impedes children’s socialization, and brings harms including elision into serious physical abuse, as well as a strong correlation to future intimate partner violence.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions Paul G. Cassell University of Utah - S.J. Quinney College of Law Date Posted: 01 Nov 2018 [new to top ten]	135
2.	Online Child Sexual Exploitation: Towards an Optimal International Response Victoria Baines Bournemouth University - School of Computing Date Posted: 11 Sep 2018 [3rd last week]	122
3.	Incapacitating Criminal Corporations William Robert Thomas Harvard Law School Date Posted: 24 Sep 2018 [new to top ten]	108
4.	Execution by Nitrogen Hypoxia: The Search for Scientific Consensus Kevin Morrow Independent Date Posted: 29 Sep 2018	102
5.	Poor Wesley Hohfeld Peter K. Westen University of Michigan Law School Date Posted: 13 Oct 2018	92
6.	Neurohype and the Law: A Cautionary Tale Stephen Morse University of Pennsylvania Law School Date Posted: 06 Sep 2018	84
7.	Nondelegation and Criminal Law Brenner Fissell Hofstra University - Maurice A. Deane School of Law Date Posted: 24 Oct 2018	73
8.	A General Mitigation for Disturbance-Driven Crimes? Psychic State, Personal Choice, and Normative Inquiries Paul H. Robinson University of Pennsylvania Law School Date Posted: 06 Sep 2018 [new to top ten]	54
9.	Patty Hearst Reconsidered: Personal Identity in the Criminal Law Kimberly Kessler Ferzan University of Virginia, School of Law Date Posted: 13 Sep 2018 [10th last week]	52
10.	Crime, Punishment, and Legal Error: A Review of the Experimental Literature Kathryn Zeiler and Erica Puccetti Boston University - School of Law and Boston University, School of Law, Students Date Posted: 10 Oct 2018 [new to top ten]	36

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Compelled Decryption and the Privilege Against Self-Incrimination Orin S. Kerr University of Southern California Gould School of Law Date Posted: 11 Oct 2018	754
2.	The Power of Prosecutors Jeffrey Bellin William & Mary Law School Date Posted: 08 Sep 2018	235
3.	Staying Faithful to the Standards of Proof Kevin M. Clermont Cornell Law School Date Posted: 08 Oct 2018	135
4.	Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions Paul G. Cassell University of Utah - S.J. Quinney College of Law Date Posted: 01 Nov 2018 [new to top ten]	135
5.	Artificial Intelligence and Policing: Hints in the Carpenter Decision Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 03 Sep 2018 [4th last week]	128
6.	Gas Chromatography-Mass Spectrometer (GC/MS): In Scientific Evidence, Even 'Gold Standard' Techniques Have Limitations Joanna Gin and Edward J. Imwinkelried University of California, Davis and University of California, Davis - School of Law Date Posted: 14 Sep 2018 [5th last week]	91
7.	Policing the Admissibility of Body Camera Evidence Jeffrey Bellin and Shevarma Pemberton William & Mary Law School and Independent Date Posted: 11 Sep 2018	90
8.	The Biased Algorithm: Evidence of Disparate Impact on Hispanics Melissa Hamilton University of Surrey School of Law Date Posted: 29 Oct 2018 [new to top ten]	86
9.	Jail as Injunction Russell M. Gold Wake Forest University - School of Law Date Posted: 13 Sep 2018 [6th last week]	85
10.	Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell Judith Resnik, Anna VanCleave, Kristen Bell, Alexandra Harrington, Gregory Conyers, Catherine McCarthy, Jenny Tumas and Annie Wang Yale University - Law School, Yale University - Law School, Yale University, Law School, Yale Law School, Yale Law School - Student, Yale Law School - Student, Yale Law School - Student and Yale Law School - Student Date Posted: 18 Oct 2018 [8th last week]	73

Mueller et al. on The Crime-Fraud Exception

Christopher B. Mueller, Laird C. Kirkpatrick and Liesa Richter (University of Colorado Law School, George Washington University - Law School and University of Oklahoma - College of Law) have posted §5.22 Crime-Fraud Exception (Evidence §5.22 (6th ed. Wolters Kluwer 2018)) on SSRN. Here is the abstract:

 

This article addresses the crime-fraud exception to the attorney-client privilege. It discusses the two-part test recognized by most courts. It also discusses the difficult issues of determining the intent of the client in consulting the lawyer and the line between past and ongoing criminal conduct. It concludes by addressing the proof necessary to claim the crime-fraud exception.

Katz on Retributivism and the Duty to Punish

Leora Dahan Katz (Polonsky Academy, Van Leer Jerusalem Institute) has posted Response Retributivism: Defending the Duty to Punish on SSRN. Here is the abstract:

Punishment presents a problem. While we generally believe that intentionally harming others is impermissible, it is widely presumed that this problem can be overcome in the case of punishment. Nonetheless, many worry about the justification of excessive punishment, especially given the state of criminal justice today. This paper offers a moderate retributive justification of punishment that avoids many of the classic problems associated with retributive theories, while retaining their intuitively compelling answer to the problem of punishment. The response-retributive theory proposed restructures traditional retributive theories: rather than relying on offender-centric reasons for punishment, response retributivism offers a punisher-centric justification, which takes the role of the punisher as well as the relations between the wrongdoer and punisher as central to the justification of punishment.

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Stark & Bock on Preparatory Offences

Findlay Stark and Stefanie Bock (University of Cambridge and University of Goettingen (Gottingen)) have posted Preparatory Offences on SSRN. Here is the abstract:

 

In this paper, we first provide a definition of ‘preparatory offences’, which is not a formal category in English or German criminal law. At the most general level, preparatory offences – as we identify them – criminalise conduct perceived to carry with it the risk that, at a later time, a completed crime will be committed (sometimes involving the person who perpetrates the preparatory offence, other times not). Preparatory offences move criminal responsibility from the actual occurrence of harmful conduct (or an attempt to bring it about) back to the planning and preparation stage of a crime. We contend that the main justification for such offences is the management of the risk of completed offences (i.e. actual harm in the form of violation of legal goods protected by the criminal law). We then defend a number of constraints on the criminalisation of preparatory offences. In our view, both English and German criminal law fall short, to differing extents, of respecting these constraints. The final part of the paper deals briefly with the punishment of preparatory offences.

Cassell on Overstating Wrongful Conviction Rates

Paul G. Cassell (University of Utah - S.J. Quinney College of Law) has posted Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions (60 Ariz. L. Rev. 815 (2018)) on SSRN. Here is the abstract:

A growing body of academic literature discusses the problem of wrongful convictions — i.e., convictions of factually innocent defendants for crimes they did not commit. But how often do such miscarriages of justice actually occur? Justice Scalia cited a figure of 0.027% as a possible error rate. But the conventional view in the literature is that, for violent crimes, the error rate is much higher — at least 1%, and perhaps as high as 4% or even more.

This Article disputes that conventional wisdom. Based on a careful review of the available empirical literature, it is possible to assemble the component parts of a wrongful conviction rate calculation by looking at error rates at trial, the ratio of wrongful convictions obtained through trials versus plea bargains, and the percentage of cases resolved through pleas. Combining empirically based estimates for each of these three factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate appears, tentatively, to be somewhere in the range of 0.016%–0.062% — a range that comfortably embraces Justice Scalia’s oftencriticized figure.

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Kumholz on District Attorneys and Criminal Justice Outcomes

Sam Krumholz (University of California, San Diego (UCSD) - Department of Economics) has posted The Effect of District Attorneys on Local Criminal Justice Outcomes on SSRN. Here is the abstract:

In the United States, elected district attorneys preside over 90% of all felony cases. Using a newly-collected dataset of district attorney elections, I show that the election of a Republican district attorney leads to a 10% increase in total sentenced months/capita, largely driven by extensive margin changes. I also find evidence that black district attorneys lead to reductions in incarceration levels, driven almost entirely by drug offenses. I conclude by showing that the way prosecutorial districts are drawn increases the probability that high-crime cities are represented by Republican and white district attorneys affecting both local and aggregate levels of incarceration.

Turner on Managing Digital Discovery

Jenia Iontcheva Turner (Southern Methodist University - Dedman School of Law) has posted Managing Digital Discovery in Criminal Cases (Journal of Criminal Law and Criminology, Vol. 109, No. 2, 2019, Forthcoming) on SSRN. Here is the abstract:

The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions.

This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information (ESI). Second, cooperation between the parties will not be sufficient to address the serious challenges that digital discovery presents to the fair and accurate resolution of criminal cases. And third, for that reason, digital discovery in criminal cases needs to be regulated more closely.

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Mueller et al. on Presumptions and Inferences in Criminal Cases

Christopher B. Mueller, Laird C. Kirkpatrick and Liesa Richter (University of Colorado Law School, George Washington University - Law School and University of Oklahoma - College of Law) have posted two entries from their new book, Evidence §3.13 (6th ed. Wolters Kluwer 2018), on SSRN. The first is §3.13 'Presumptions' in Criminal Cases. Here is the abstract:

 

This article addresses the constitutionality of “presumptions” in criminal cases. It discusses the leading case of Sandstrom v Montana and its holding that a presumption cannot be mandatory in a criminal case.

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Davidson on International Lessons Regarding Rape Law

Caroline Davidson (Willamette University - College of Law) has posted Rape in Context: Lessons for the United States from the International Criminal Court (Cardozo Law Review, Vol. 39, No. 1191, 2018) on SSRN. Here is the abstract:

 

The law of rape is getting a rewrite. Domestically and internationally, major efforts are underway to reform rape laws that have failed to live up to their promises of seeking justice for victims and deterring future sexual violence. The cutting edge of international criminal law on rape eschews inquiries into consent and instead embraces an examination of coercion or a coercive environment. By contrast, in the United States, rape reform discussions typically center on consent. The American Law Institute’s proposed overhaul of the Model Penal Code’s provision on sexual assault carves out a middle ground and introduces, in addition to the traditional crime of forcible rape, separate sexual assault offenses based on coercion and lack of consent. This Article compares these two trajectories of rape reform and asks whether, as Catharine MacKinnon has suggested, U.S. law ought to follow the lead of international criminal law and define rape in terms of coercive inequalities. Ultimately, this Article concludes that adopting the international criminal coercion test in U.S. rape law would do more harm than good. Instead, it outlines more modest, but workable, lessons the United States can learn from the international law of rape.

Diamond & Rose on Juries

Shari Seidman Diamond and Mary R. Rose (Northwestern University, School of Law & American Bar Foundation and University of Texas at Austin - Department of Sociology) have posted an abstract of The Contemporary American Jury (Annual Review of Law and Social Science, Vol. 14, pp. 239-258, 2018) on SSRN. Here is the abstract:

 

The contemporary American jury is more inclusive than ever before, although multiple obstacles continue to make racial and ethnic representation a work in progress. Drastic contraction has also occurred: The rate of jury trials is at an all-time low, dampening the signal that jury verdicts provide to the justice system, reducing the opportunity for jury service, and potentially threatening the legitimacy of judgments. At the same time, new areas of jury research have been producing important explanations for how the jury goes about reaching its verdict in response to challenging questions, like how to assess damages. Yet the persistent focus on individual juror judgments as opposed to decision making by the jury as a group leaves unanswered important questions about how jury performance is influenced by a primary distinctive feature of the jury: the deliberation process.

Brayne on Law Enforcement Implications of Big Data

Sarah Brayne (University of Texas at Austin) has posted The Criminal Law and Law Enforcement Implications of Big Data (Annual Review of Law and Social Science, Vol. 14, pp. 293-308, 2018) on SSRN. Here is the abstract:

 

Law enforcement agencies increasingly use big data analytics in their daily operations. This review outlines how police departments leverage big data and new surveillant technologies in patrol and investigations. It distinguishes between directed surveillance—which involves the surveillance of individuals and places under suspicion—and dragnet surveillance—which involves suspicionless, unparticularized data collection. Law enforcement's adoption of big data analytics far outpaces legal responses to the new surveillant landscape. Therefore, this review highlights open legal questions about data collection, suspicion requirements, and police discretion. It concludes by offering suggestions for future directions for researchers and practitioners.

Hamilton on Hispanics and the Biased Algorithm

Melissa Hamilton (University of Surrey School of Law) has posted The Biased Algorithm: Evidence of Disparate Impact on Hispanics (56 AM. CRIM L. REV. Forthcoming) on SSRN. Here is the abstract:

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety. Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities. Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

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Joy & Uphoff on Sentencing Reform

Peter A. Joy and Rodney J. Uphoff (Washington University in St. Louis - School of Law and University of Missouri School of Law) have posted Sentencing Reform: Fixing Root Problems (University of Missouri-Kansas City Law Review, Vol. 87, No. 1, 2018) on SSRN. Here is the abstract:

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.

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Tofangsaz on Terrorist Financing

Hamed Tofangsaz (University of Waikato - Faculty of Law, Students) has posted The Offence of Terrorist Financing; Why Does It Go Wrong? (International Criminal Law Review, 2018, Volume 18, Issue 5, pp. 822-852) on SSRN. Here is the abstract:

 

The international convention on terrorist financing and Western-backed international organizations have found the financing of terrorism serious enough to criminalize it as an independent offence. While the offence has a preparatory nature, its criminalization as an independent offence expands the boundary of criminal liability beyond existing notions of criminalization. This paper aims at examining the justifiability of the terrorist financing offence with regard to the principles and values on which liberal criminal law is based. Liberal criminal law has been chosen because the idea of the criminalization of terrorist financing was issued and developed mainly by Western liberal states. The paper narrowly discusses the issue in the context of Anglo-American criminal law.