CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Feeding the Machine: Policing, Crime Data, & Algorithms Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 21 Aug 2017	308
2.	Forensic Science: Daubert's Failure Paul C. Giannelli Case Western Reserve University School of Law Date Posted: 06 Sep 2017 [5th last week]	225
3.	The Reid Interrogation Technique and False Confessions: A Time for Change Wyatt Kozinski University of Virginia - School of Law, Alumnus or Degree Candidate Author Date Posted: 23 Jul 2017 [2nd last week]	180
4.	Reconceiving the Standard Conception of the Prosecutor's Role Alice Woolley University of Calgary Date Posted: 30 Aug 2017 [3rd last week]	143
5.	Data Extraterritoriality Kristen Eichensehr University of California, Los Angeles (UCLA) - School of Law Date Posted: 31 Jul 2017 [4th last week]	117
6.	Misdemeanors Alexandra Natapoff University of California, Irvine School of Law Date Posted: 16 Aug 2017 [8th last week]	114
7.	The Fragile Promise of Open File Discovery Ben Grunwald Duke University School of Law Date Posted: 03 Aug 2017 [6th last week]	109
8.	Carpenter v. United States: Brief of Scholars of Criminal Procedure and Privacy as Amici Curiae in Support of Petitioner Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 17 Aug 2017 [7th last week]	108
9.	A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age Peter C. Ormerod and Lawrence J. Trautman Western Carolina University and Western Carolina University Date Posted: 24 Jul 2017	103
10.	Legal Remedies for Police Misconduct Rachel Harmon University of Virginia School of Law Date Posted: 10 Aug 2017	93

Next week's criminal law/procedure argument(s)

Issue summaries are from ScotusBlog, which also links to papers:

Monday

• Sessions v. Dimaya: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an alien's removal from the United States, is unconstitutionally vague.

Wednesday

• District of Columbia v. Wesby:  (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects' questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard. Previous coverage here.
• Class v. U.S.: Whether a guilty plea inherently waives a defendant's right to challenge the constitutionality of his statute of conviction.

 

Duncan on Defense Lawyering

Meredith J. Duncan (University of Houston Law Center) has posted 'Lucky' Adnan Syed: Comprehensive Changes to Improve Criminal Defense Lawyering and Better Protect Defendants’ Sixth Amendment Rights (82 Brooklyn Law Review 1651 (2017)) on SSRN. Here is the abstract:

 

Almost twenty years ago, seventeen years old and accused of murder, Adnan Syed was deprived of his Sixth Amendment right to the effective assistance of counsel at trial and sentenced to life in prison. The reality is that Syed is just another casualty of the criminal justice system’s tolerance of poor defense lawyering. The substandard quality of legal representation highlighted in Syed’s case continues to harm countless defendants nationwide, and the promise of effective assistance of counsel for the accused remains unfulfilled due to a combination of factors. This article suggests comprehensive changes to certain aspects of the criminal justice system in an effort to improve the overall quality of criminal defense lawyering. In the more than thirty years since Strickland v. Washington, prisoners have famously had difficulty proving that their trial counsel provided constitutionally inadequate representation. The success rate of ineffective assistance of counsel claims is well documented as abysmally low. Worse still, the failure rate of ineffective assistance claims does not accurately reflect the frequency with which defendants receive unacceptable legal representation at trial.

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Miao on Punitive Anti-Drug Campaigns in Asia

Michelle Miao (The Chinese University of Hong Kong, Faculty of Law) has posted The Penal Construction of Drug-Related Offenses in the Context of 'Asian Values': The Rise of Punitive Anti-Drug Campaigns in Asia (International Comparative, Policy & Ethics Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This article examines the penal construction of drug-related offenses as ‘the most serious offenses’ in the context of ‘Asian values’. It explains that there are at least three ways in which the serious nature of drug-related criminality is constructed – populism, moral culpability and security − all of which are deeply embedded in the political culture and practices in Asian countries which adopt a punitive approach to drug-related offenses. The article explores social and political discourses in support of state reliance on harsh penal sanctions to tackle complex drug-related problems. It shows that these discourses are frequently exploited and distorted for political motives. The article concludes that ‘Asian values’ can neither provide valid rationales for the campaigns of ‘war on drugs’ or offer solid justification for the erosion of the rights, liberty, and life of those who are involved in the ‘war’ against illicit drugs.

Cassell on Innocence Reforms That Avoid Harmful Tradeoffs

Paul G. Cassell (University of Utah - S.J. Quinney College of Law) has posted Can We Protect the Innocent without Freeing the Guilty? Thoughts on Innocence Reforms That Avoid Harmful Tradeoffs (Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (ed. Daniel Medwed), Cambridge University Press (2017)) on SSRN. Here is the abstract:

 

It is fundamentally important that the criminal justice system accurately separate the guilty from the innocent. But many recent reform measures from the innocent movement rest on shaky ground. Protecting against wrongful convictions can create tradeoffs. If poorly crafted, a reform measure might not only prevent convicting innocent persons but also guilty persons, allowing dangerous criminals to avoid incarceration and continue to victimize innocent persons. From a public policy perspective, these tradeoffs create concern that reform measures may be cures worse than the disease.

With this caution in mind, it is possible to craft reforms that help to protect the innocent without allowing the escape of the guilty.

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Henderson on Big Data

Stephen E. Henderson (University of Oklahoma College of Law) has posted A Few Criminal Justice Big Data Rules (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

As with most new things, the big data revolution in criminal justice has historic antecedents—indeed, a 1965 Presidential Commission called for some of the same data analysis that police departments and courts are today developing and implementing. But there is no doubt we are on the precipice of a criminal justice data revolution, and it is a good time to take stock and to begin developing guidelines so that, as much as possible, criminal justice systems might reap the benefits and avoid the pitfalls of this newly data-centric world. In that spirit, I propose nine high-level standards to guide criminal justice big data implementations.

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"US Sentencing Commission releases big new report on "Federal Alternative-to-Incarceration Court Programs""

Doug Berman at Sentencing Law & Policy excerpts from the report and links to it. From the excerpt:

The original 1987 Guidelines Manual provided for alternative sentencing options such as probation for certain low-level federal offenders, and the Commission thereafter amended the guidelines on several occasions to increase the availability of alternative sentences as sentencing options. Despite these amendments, the rate of alternative sentences imposed in cases governed by the sentencing guidelines has fallen steadily during the past three decades, including after United States v. Booker, and Gall v. United States, which increased federal judges’ discretion to impose alternative sentences. In recent years, the Commission has prioritized the study of alternatives to incarceration as a sentencing option.

"ACLU of Colorado files suit alleging racial profiling"

From Jurist:

The American Civil Liberties Union of Colorado(ACLU-CO) [advocacy website] filed a lawsuit [press release] Wednesday alleging unlawful racial profiling.

In the complaint [text, PDF], the ACLU alleges officers from the Aurora police department prevented Omar Hassan, a black Ethiopian man, from dining at a Caribou Coffee [corporate website] in March 2016. The complaint alleges the officers racially profiled Hassan due to the fact he spoke with an accent and wore a hoodie. According to the suit they officers forced him to leave the establishment, without a request from the Caribou staff, after informing him that his "kind" was not welcome there.

Miao on LWOP in Abolitionist Campaign

Michelle Miao (The Chinese University of Hong Kong, Faculty of Law) has posted Replacing Death with Life? The Rise of LWOP in the Context of Abolitionist Campaign in the United States (Capital University Law Review, Vol. 46, 2017 Forthcoming) on SSRN. Here is the abstract:

 

On the basis of 54 elite interviews with legislators, judges, attorneys and civil society advocates, as well a state-by-state data survey, this paper examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving life without the possibilities of parole (LWOP) sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP is a chronic and latent form of ultimate punishment which strips life of its most valuable existential character. Second, the findings explore the connection between the rise of LWOP and the nation-wide campaign against capital punishment. It explains that the abolition campaign normalized and accentuated LWOP as a symbolic substitute to the death penalty. The research reveals the thorny ethical and moral dilemmas facing anti-death penalty activists at the forefront of the abolitionist movement. Third, the paper demonstrates that the judicial use of LWOP and capital punishment at the state level do not support the claim that a decline in capital punishment is caused by the expansion of LWOP. In sum, LWOP has been employed not merely as a penal punishment for America’s most incorrigible criminal offenders. It has been used as a strategic instrument to reshape American penal politics.

Levine on Access to Police Disciplinary Records

Kate Levine (St. John's University - School of Law) has posted We Need to Talk About Police Records (Fordham Urban Law Journal, Online, 2017) on SSRN. Here is the abstract:

 

In March 2017, an employee of New York’s Civilian Complaint Review Board leaked the disciplinary record of Daniel Pantaleo to the media. Pantaleo, the police officer who choked Eric Garner to death in the video that went public and horrified many citizens, is under federal investigation after a Staten Island grand jury refused to indict him for Garner’s death. Legal Aid Society attorneys had unsuccessfully sought the release of his records in the courts for years. The leak of his records is the public face of an important but rarely discussed issue facing police, legislators, judges, lawyers, and scholars who care both about transparency for public servants and privacy for individual citizens: how and when police should be forced to make their disciplinary records public.

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Coenen on Free Speech and Criminal Law

Dan T. Coenen (University of Georgia Law School) has posted Freedom of Speech and the Criminal Law (Boston University Law Review, Vol. 97, 2017) on SSRN. Here is the abstract:

 

Because the Free Speech Clause limits government power to enact penal statutes, it has a close relationship to American criminal law. This Article explores that relationship at a time when a fast-growing “decriminalization movement” has taken hold across the nation. At the heart of the Article is the idea that free speech law has developed in ways that have positioned the Supreme Court to use that law to impose significant new limits on the criminalization of speech. More particularly, this article claims that the Court has developed three distinct decision-making strategies for decriminalizing speech based on constitutional principles. The first involves judicial blocking—that is, declaring some speech controls altogether out of bounds, whether they utilize either criminal or civil sanctions. The second involves judicial channeling—that is, requiring that government regulation of some types of speech must take the form of civil law, and not criminal law, restraints. The third involves judicial narrowing—that is, interpreting criminal statutes to restrict their reach and thus frustrate potential government prosecutions in light of free expression values. This Article identifies concrete ways in which the Court might deploy all three strategies to support the decriminalization of expressive conduct in the future, with regard to such topics as fighting words, hostile audience speech, infliction of emotional distress, mens rea rules, speech law “tortification,” content discrimination, individualized-warning requirements, hybrid-rights analysis, and more.

Brink on Attempts

David O. Brink (University of California, San Diego) has posted The Path to Completion (Oxford Studies in Agency and Responsibility 4 (2017): 183-205) on SSRN. Here is the abstract:

 

Attempted wrongdoing is wrong and deserves censure and sanction, provided the agent was responsible for her attempt. One conception of attempts, incorporated in the criminal law, treats them as bivalent. The important question is at what point in an agent’s planning, preparation, and execution of an offense the attempt is completed. However, bivalence fails to recognize partially complete attempts and is unable to give a satisfying account of the criminal law defense of abandonment. This essay explores an alternative conception of attempts as historical and scalar. On this view, attempts involve the implementation of temporally extended decision trees that pass through many nodes and terminate in a last act. This view rejects bivalence, because at many points within the decision tree there is only a partially complete attempt, and it provides a more satisfying account of abandonment, precisely because it can recognize attempts that are only partially complete.

Atiq on Ring and Legal vs. Factual Normative Questions

Emad H. Atiq (Princeton University - Department of Philosophy) has posted 

Legal vs. Factual Normative Questions & the True Scope of Ring (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 32, 2018) on SSRN. Here is the abstract:

 

When is a normative question a question of law rather than a question of fact? The short answer, based on common law and constitutional rulings, is: it depends. For example, if the question concerns the fairness of contractual terms, it is a question of law. If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact. If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court’s seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case law cannot be explained by traditional accounts of the law/fact distinction and has fueled recent skepticism about the possibility of gleaning a coherent principle from judicial rulings.

This Article clarifies a principle implicit in the settled classifications. I suggest that judicial practice is consistent: it can be explained by the distinction between normative questions that are convention-dependent and those that are convention-independent.

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Today's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which also links to papers:

• City of Hays, Kansas v. Vogt: Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.
• Collins v. Virginia: Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.
• Byrd v. United States: Expectations of privacy in rental car for someone who is not an authorized driver.
• McCoy v. Louisiana: Whether it is unconstitutional for defense counsel to concede a defendant’s guilt over the defendant’s objection.
• Rosales-Mireles v. United States: Sentencing error case raising question of standard for the court of appeals to correct a plain error.

"Acting DEA head officially resigns"

Doug Berman has this post at Sentencing Law & Policy, providing a lengthy excerpt from a New York Times article and noting the piece's claim that "he had become convinced that President Trump had little respect for the law."

"Quickie Correlations on Crime and Punishment Stats"

Kent Scheidegger has this post at Crime & Consequences. In part:

My quickie spreadsheet calculation shows a coefficient of correlation between violent crime rate and prisoner change of -0.27.  For property crime it is -0.31.  If we use numbers of crimes instead of rates, the correlations are a tad stronger.

A negative correlation means that the two variables tend to move in opposite directions.  As number of prisoners goes down, crimes tend to go up.  That is just what persons of sense would expect.

"A massive review of the evidence shows letting people out of prison doesn’t increase crime"

From Vox, via NACDL news scan:

“I estimate, that at typical policy margins in the United States today, decarceration has zero net impact on crime,” Roodman wrote in a blog post. “That estimate is uncertain, but at least as much evidence suggests that decarceration reduces crime as increases it. The crux of the matter is that tougher sentences hardly deter crime, and that while imprisoning people temporarily stops them from committing crime outside prison walls, it also tends to increase their criminality after release. As a result, ‘tough-on-crime’ initiatives can reduce crime in the short run but cause offsetting harm in the long run.”

This isn’t the first major analysis to find incarceration has little or no effect on crime; other researchers and studies estimate that since the 1990s, more incarceration contributed to anywhere from 0 to 25 percent of the drop in crime. But Roodman’s analysis is one of the most extensive reviews I have seen.

 

Ryo on Subject-Centered Approaches to Immigration Noncompliance

Emily Ryo (University of Southern California Gould School of Law) has posted The Promise of a Subject-Centered Approach to Understanding Immigration Noncompliance (Journal on Migration and Human Security Vol. 5, pp. 285-296) on SSRN. Here is the abstract:

 

Unauthorized immigrants and immigration enforcement are once again at the center of heated public debates and reform agendas. This paper examines the importance of applying a subject-centered approach to understanding immigration noncompliance and to developing effective, ethical, and equitable immigration policies. In general, a subject-centered approach focuses on the beliefs, values, and perceptions of individuals whose behavior the law seeks to regulate. This approach has been widely used in non-immigration law contexts to produce a richer and more nuanced understanding of legal noncompliance. By contrast, the subject-centered approach has been an overlooked and underappreciated tool in the study of immigration noncompliance. This paper argues that a subject-centered understanding of why people obey or disobey the law has the potential to generate new insights that can advance public knowledge and inform public policy on immigration in a number of important ways. Specifically, the paper considers how the use of this approach might help us: (1) recognize the basic humanity and moral agency of unauthorized immigrants, (2) appreciate not only direct and immediate costs of immigration enforcement policies, but also their indirect and long-term costs, and (3) develop new and innovative strategies to achieving desired policy goals.

Bierschbach on Fragmentation, Democracy, and Punishment

Richard A. Bierschbach (Wayne State University Law School) has posted Fragmentation and Democracy in the Constitutional Law of Punishment (Northwestern University Law Review, Vol. 111, No. 6, 2017) on SSRN. Here is the abstract:

 

Scholars have long studied the relationship of structural constitutional principles like checks and balances to democracy. But the relationship of such principles to democracy in criminal punishment has received less attention. This Essay examines that relationship and finds it fraught with both promise and peril for the project of democratic criminal justice. On the one hand, by blending a range of inputs into punishment determinations, the constitutional fragmentation of the punishment power can enhance different types of influence in an area in which perspective is of special concern. At the same time, the potentially positive aspects of fragmentation can backfire, encouraging tunnel vision, replicating power differentials, and making it easier for more well-resourced voices to drown out others. Thus, the same structure that generates valuable democratic benefits for punishment also falls prey and contributes to serious democratic deficits. But despite its drawbacks, we cannot and should not abandon the Constitution’s fragmented approach to crime and punishment. The more promising move is to look for ways to make different loci of influence and representation more meaningful within our existing framework, doing more to ensure that multiple voices are heard.

"A Georgia Man Facing Execution Was Convicted By A Juror Who Wondered If "Black People Even Have Souls""

From BuzzFeed, via NACDL news scan:

In an affidavit, Gattie — now deceased — said, "In my experience, I have observed that there are two types of black people. 1. Black folks and 2. Niggers."

Gattie said that he knew Jacquelin Freeman and called her family "nice black folks," adding that if the Freemans had been "the type Tharpe is" then picking between life and death for Tharpe "wouldn't have mattered so much."

He said that Tharpe wasn't in the "good black folks category" and that he deserved the electric chair for what he did to Freeman.