CrimProf Blog

Oliva & Beety on Fire Evidence

Jennifer Oliva and Valena Elizabeth Beety (West Virginia University College of Law and West Virginia University - College of Law) have posted Evidence on Fire (North Carolina Law Review, Vol. 97, Forthcoming) on SSRN. Here is the abstract:

 

Fire science, a field largely developed by lay “arson” investigators, police officers or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages in justice. As science-proficient commentators have noted, “fire scene investigators are subject to very little proficiency training, and the field’s requirements call for no more than a high school education.” Perhaps surprisingly, courts have largely spared many of the now-debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts ongoing lax admissibility of unreliable fire science evidence in criminal cases with their strict exclusion of the same flimsy evidence in civil cases notwithstanding that both criminal and civil courts are required to operate under the same expert evidence exclusionary rules. 

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Rothberg & Stith on The Opioid Crisis and Federal Criminal Prosecution

Rachel Rothberg and Kate Stith (Yale University, Law School, Students and Yale University - Law School) have posted The Opioid Crisis and Federal Criminal Prosecution (Journal of Law, Medicine & Ethics, Forthcoming) on SSRN. Here is the abstract:

 

This article examines how federal law enforcement has responded to the opioid epidemic nationally and in a variety of locales, but we focus in depth on the federal law enforcement response in Connecticut.

Sacharoff on Passwords, Encrypted Devices, and the Fifth Amendment

Laurent Sacharoff (University of Arkansas School of Law) has posted Unlocking the Fifth Amendment: Passwords and Encrypted Devices (Fordham Law Review, Vol. 87, Forthcoming) on SSRN. Here is the abstract:

 

Each year, law enforcement seizes thousands of electronic devices — iPhones, laptops, and notebooks — that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, or discovering copies of data on the cloud, or by obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password?

This article considers the Fifth Amendment protection against compelled disclosures of passwords

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Hessick on The Expansion of Child Pornography Law

Carissa Byrne Hessick (University of North Carolina School of Law) has posted The Expansion of Child Pornography Law (21 New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This symposium essay identifies two dramatic expansions of child pornography law: Prosecutions for possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images. These prosecutions have expanded the definition of the term child pornography well beyond its initial meaning. What is more, they signal that child pornography laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children. If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.

Bennett on Federal Sentencing

Mark W. Bennett (U.S. District Court (Northern District of Iowa)) has posted Addicted to Incarceration: A Federal Judge Reveals Shocking Truths About Federal Sentencing and Fleeting Hopes for Reform on SSRN. Here is the abstract:

 

A federal district judge who has sentenced more than 4,000 offenders in multiple districts shares his experience and criticisms of current federal sentencing. The article begins with a history of federal sentencing, then focuses on problems related to mandatory minimum sentencing and application of 21 U.S.C. § 851 prior conviction enhancements in federal drug cases. The next section exposes the myth of empirical federal sentencing guidelines. The final section offers eight specific suggestions for federal sentencing reform.

Stevenson & Najdowski on Criminal Juries

Margaret Stevenson and Cynthia Najdowski (University of Evansville and University at Albany, State University of New York) have posted Criminal Juries in the 21st Century: A Case-Study Introduction to Contemporary Issues on SSRN. Here is the abstract:

 

In this introductory chapter to our volume "Criminal Juries in the 21st Century: Contemporary Issues, Psychological Science, and the Law," we provide an overview of the goals of the present volume and a preview of the individual chapters herein. Specifically, we review research on various understudied and cutting-edge topics related to the intersection of psychological research and criminal jury decision making. We place this research in the real-world context by relating it to actual criminal cases that exemplify each topic addressed in the volume. In doing so, we focus on the common themes that are reflected in all of the chapters of the volume: the need to understand how issues such as societal attitudinal shifts, technological advances, and juror experiences affect the structure, function, and performance of the modern criminal jury; the merits of implementing legal innovations and practices informed by empirical research; and important avenues for future empirical exploration.

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers:

• Bucklew v. Precythe: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and (4) whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Computer Crime Law (Introduction) Orin S. Kerr University of Southern California Gould School of Law Date Posted: 13 Apr 2018 [2nd last week]	401
2.	Is Tricking a Robot Hacking? Ryan Calo, Ivan Evtimov, Earlence Fernandes, Tadayoshi Kohno and David O'Hair University of Washington - School of Law, University of Washington - Paul G. Allen School of Computer Science & Engineering, University of Washington - Paul G. Allen School of Computer Science & Engineering, University of Washington - Paul G. Allen School of Computer Science & Engineering and University of Washington School of Law Date Posted: 28 Mar 2018 [1st last week]	390
3.	Emojis and the Law Eric Goldman Santa Clara University - School of Law Date Posted: 08 Mar 2018	247
4.	The Myth of Common Law Crimes Carissa Byrne Hessick University of North Carolina School of Law Date Posted: 16 Mar 2018	198
5.	The Mental Representation of Human Action Sydney Levine, Alan Leslie and John Mikhail Massachusetts Institute of Technology (MIT), Rutgers University, New Brunswick and Georgetown University Law Center Date Posted: 03 Mar 2018	137
6.	Informed Misdemeanor Sentencing Jenny Roberts American University - Washington College of Law Date Posted: 14 Mar 2018 [7th last week]	122
7.	Cannabis Decriminalization: A Study of Recent Policy Change in Five States Rick Grucza, Melissa Krauss, Andrew Plunk, Arpana Agrawal, Frank J. Chaloupka and Laura Bierut Washington University in St. Louis - Department of Psychiatry, Washington University in St. Louis - Department of Psychiatry, Eastern Virginia Medical School - Department of Pediatrics, Washington University in St. Louis - Department of Psychiatry, University of Illinois at Chicago - Department of Economics and Washington University in St. Louis - Department of Psychiatry Date Posted: 05 Mar 2018 [8th last week]	118
8.	Protectors of Predators or Prey: Bystanders and Upstanders Amid Sexual Violence Zachary D. Kaufman Yale University - Law School Date Posted: 03 Apr 2018 [9th last week]	114
9.	Predicting Enemies Ashley Deeks University of Virginia - School of Law Date Posted: 29 Mar 2018 [10th last week]	110
10.	Deviancy, Disability, and Dependency: The Forgotten History of Eugenics and Mass Incarceration Laura I. Appleman Willamette University College of Law Date Posted: 19 Mar 2018 [new to top ten]	82

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	What Caused the 2016 Chicago Homicide Spike? An Empirical Examination of the 'ACLU Effect' and the Role of Stop and Frisks in Preventing Gun Violence Paul G. Cassell and Richard Fowles University of Utah - S.J. Quinney College of Law and University of Utah - College of Social & Behavioral Sciences - Department of Economics Date Posted: 27 Mar 2018	1,067
2.	Cross-Enforcement of the Fourth Amendment Orin S. Kerr University of Southern California Gould School of Law Date Posted: 19 Mar 2018	406
3.	The Scale of Misdemeanor Justice Megan T. Stevenson and Sandra G. Mayson George Mason University - Antonin Scalia Law School, Faculty and University of Georgia School of Law Date Posted: 26 Mar 2018	242
4.	The Myth of the Reliability Test Brandon L. Garrett and M. Chris Fabricant University of Virginia - School of Law and Innocence Project, Inc. Date Posted: 12 Mar 2018	188
5.	Principles of Risk Assessment: Sentencing and Policing Christopher Slobogin Vanderbilt University - Law School Date Posted: 09 Mar 2018 [6th last week]	168
6.	Artificial Intelligence and Automated Law Enforcement: A Review Paper Nicolas Petit University of Liege - School of Law Date Posted: 21 Mar 2018 [5th last week]	168
7.	Racial Equity in Algorithmic Criminal Justice Aziz Z. Huq University of Chicago - Law School Date Posted: 24 Mar 2018	147
8.	'Don't Elect Me': Sheriffs and the Need for Reform in County Law Enforcement James Tomberlin University of Virginia - School of Law, Alumnus or Degree Candidate Author Date Posted: 09 Mar 2018 [9th last week]	128
9.	Sixth Amendment Sentencing after Hurst Carissa Byrne Hessick and William W. Berry University of North Carolina School of Law and University of Mississippi School of Law Date Posted: 07 Mar 2018 [10th last week]	124
10.	Plea Bargaining: From Patent Unfairness to Transparent Justice Mirko Bagaric, Julie N. Clarke and William Rininger Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School, Melbourne Law School and University of Akron - University of Akron School of Law, Students Date Posted: 06 Mar 2018 [new to top ten]	118

Crabbe on The Cultural Defense

Heather Crabbe (NKU Chase College of Law) has posted State Your Case: Best Practices for Presenting a Cultural Defense in Criminal Litigation (Special Issue: Cultural Expert Witnessing in 74 Studies in Law, Politics, and Society (2018)) on SSRN. Here is the abstract:

 

When someone’s actions deviate from the social norms of the majority, those actions may be used as the basis for criminal charges against the person, even when the person’s actions are considered innocent within his or her culture. This chapter examines the evidence that can be presented on behalf of a person wishing to invoke a cultural defense, and the author also shares her own experiences in utilizing the defense as an attorney. Cultural defenses can be effective; however, there are arguments both for and against its use. Also explained are processes of pretrial litigation, qualifying an expert witness, trial, sentencing, and appeals.

Capers on Techno-Policing

I. Bennett Capers (Brooklyn Law School) has posted Techno-Policing (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

In July 2017, the New York Times reported that Three Square Market, a Wisconsin based technology company, was asking its employees to have a microchip injected between their thumb and index finger. More than half of the employees consented to the implant, which would function as a type of swipe card. As one employee put it, “In the next five to 10 years, this is going to be something that isn’t scoffed at so much, or is more normal. So I like to jump on the bandwagon with these kind of things early, just to say that I have it.”

What might the implanting of microchips portend for criminal justice issues? Might we one day implant chips in convicted felons, or arrestees? Or if not all arrestees, perhaps those released on bail? Indeed, at a time when many scholars and legislators are rethinking bail, might the availability of removable chips strengthen the argument against pretrial detention, and against money bail? And what are the implications for sentencing, especially algorithmic risk-based sentencing?

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Brown on Settlement without Discovery

Darryl K. Brown (University of Virginia School of Law) has posted How to Marginalize Criminal Trials Without Pretrial Discovery (55 Am. Crim. L. Rev. 155 (2018)) on SSRN. Here is the abstract:

 

In the early twentieth century, both civil and criminal cases were resolved by trial roughly twenty percent of the time. In the early twenty-first, the trial rates for both dockets hover around two or three percent. The predominant explanation for “disappearing trial” in civil litigation is the advent of broad pretrial discovery initiated by the Federal Rules of Civil Procedure. Trials were once necessary not only to settle factual disputes but also to generate evidence of the facts. Discovery rules empowered parties to gather virtually all evidence before trial, which turned out to lead to the parties to settle in nearly all cases and pushed the trial toward obsolescence. The federal criminal justice system never adopted discovery rules remotely as broad as the civil model. For decades, neither did state systems; most still have not. What, then, explains criminal adjudication’s ability to match the civil system in replacing trials with settlements?

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Mungan & Samuel on Avoidance, Errors and the Optimal Standard of Proof

Murat C. Mungan and Andrew Samuel (George Mason University - Antonin Scalia Law School, Faculty and Loyola University Maryland) have posted Avoidance, Errors and the Optimal Standard of Proof on SSRN. Here is the abstract:

 

Criminals often engage in costly avoidance to lower their probability of being detected and sanctioned. Such avoidance, in turn, affects the optimal enforcement policy. This paper studies the impact of avoidance on a specific type of enforcement policy - the standard of proof. We show that when avoidance is possible the optimal standard of proof is weaker than preponderance of the evidence. This stands in contrast to much of the literature, which shows that non-deterrence costs usually cause the standard of proof to be stronger than preponderance. Our results suggest that it is important not to ignore criminals' secondary behavior when determining the optimal standard of proof.

Booth on Homicide and Victim Impact Statements

Tracey Booth (University of Technology Sydney, Faculty of Law) has posted Victim Impact Statements and Sentencing Homicide Offenders: A Critical Analysis of Recent Changes to the Crimes (Sentencing Procedure) Act 1999 (NSW) (University of New South Wales Law Journal, Vol. 41, No. 1, 2018) on SSRN. Here is the abstract:

 

The use of victim impact statements (‘VISs’) from family victims in homicide matters, particularly as evidence of aggravating factors, is contentious in NSW courts. Until July 2014, the law prevented VISs influencing penalties imposed on homicide offenders (Previtera). However, the Crimes (Sentencing Procedure) Act 1999 was amended in 2014 in order to overrule Previtera and enable VISs to ‘count’ in sentencing homicide offenders. This article draws on a case study of 39 homicide sentencing judgments, July 2014–April 2017, to determine whether, and if so the extent to which, the new law has changed the role of VISs from family victims in sentencing. It also considers the practical implications of these findings for future family victims and argues that not only has the new law made little practical difference to the use of VISs in homicide matters, but there are also potential adverse consequences for family victims in the sentencing process.

Ristroph on Philosophy, Law, and Procedure

Alice Ristroph (Brooklyn Law School) has posted The Thin Blue Line from Crime to Punishment (Journal of Criminal Law and Criminology, Vol. 108, p. 305, 2018) on SSRN. Here is the abstract:

 

Criminal law scholarship is marked by a sharp fault line separating substantive criminal law from criminal procedure. Philosophical work focuses almost exclusively on the substantive side of that line, addressing adjudicative procedure (the trial process) rarely and investigative procedure (especially police conduct) almost never. Instead, criminal law theorists devote substantial attention to just two questions: what conduct should be criminal, and why is punishment justified? This essay argues that criminal law theory cannot adequately address these favored subjects — the definition of crime and the justification of punishment — without also addressing the enforcement mechanisms that link crimes to punishments. Specifically, philosophers of criminal law cannot continue to ignore the police.

Lyman on Race, Homicides, and Prosecutions

Tim Lyman (Northeastern University, Institute for Security and Public Policy at the School of Criminology and Criminal Justice) has posted 15th JDC (La) Study on Race, Homicides, and Prosecutions, 1976-2014 on SSRN. Here is the abstract:

 

This is the first Louisiana Judicial District Court study since the data from the original five JDC studies (JDCs 1, 16, 19, 22, and 24) were aggregated into one study called “Race and the Death Penalty in Louisiana: An Actuarial Analysis.” The next step in scientific method is to test the theory developed there, that "maldistribution is systemic, occurring in uniform patterns across the jurisdictions," on new data. This is done here, analyzing the available data about death-eligible cases in the 15th JDC during the 39 years since Gregg v. Georgia. The results bolster the theory, finding maldistribution right in line with the aggregated five-JDC data of the Actuarial Analysis.

Wolf on The California Electronic Communications Privacy Act

Abby Wolf has posted The World Still Looks to California: The CalECPA as a Model Step for Privacy Reform in the Digital Age (The Journal of Law and Technology at Texas, August 2017) on SSRN. Here is the abstract:

Fourth Amendment protections have always lagged behind technology. Traditional frameworks for Fourth Amendment analysis were developed before the advent and ubiquity of the Internet and electronic communication. The law was not designed to cover the ever-increasing range of human activities that occur in intangible mediums. Consequently, personal electronic data is vulnerable to surveillance and seizure by law enforcement on a mass scale, which courts have been both unwilling and unable to recognize. In response to this lacuna in Fourth Amendment coverage, California passed S.B. 178, also know as the California Electronic Communications Privacy Act (“CalECPA”), which was designed to strengthen privacy protections and to prevent warrantless law enforcement access to data. 

This Paper examines and critiques the provisions of the CalECPA and this bill's ability to adapt Fourth Amendment protections into the modern technological environment. Though it does not solve all of the problems associated with the execution of searches in a digital medium, the CalECPA is a model piece of legislation that other states may wish to follow and improve upon.

Bowling & Westenra on Crimmigration

Ben Bowling and Sophie Westenra (King's College London – The Dickson Poon School of Law and University of Oxford) have posted ‘A Really Hostile Environment’: Adiaphorization, Global Policing and the Crimmigration Control System (Forthcoming in the Theoretical Criminology Journal, 2018) on SSRN. Here is the abstract:

 

This article examines institutional practices designed to control criminalized migrants in the UK and advances three arguments. First, these practices have evolved, since the early 1970s, into a bespoke ‘crimmigration control system’ distinct from the domestic criminal justice system. Second, this system is directed exclusively at efficient exclusion and control; through a process of adiaphorization, moral objections to the creation of a ‘really hostile environment’ have been disabled. Third, the pursuit of the criminalized immigrant—a globally recognized ‘folk devil’—provides a vital link between domestic and global systems of policing, punishment and exclusion. The UK crimmigration control system is an example of wider processes that are taking place in institutions concerned with the control of suspect populations across the globe.

Demleitner on Sex Offenders

Nora V. Demleitner (Washington and Lee University) has posted Structuring Relief for Sex Offenders from Registration and Notification Requirements: Learning from Foreign Jurisdictions and from the Model Penal Code: Sentencing (Federal Sentencing Reporter, Vol. 30, 2018) on SSRN. Here is the abstract:

 

A wide array of collateral sanctions envelops convicted sex offenders. Among the most debilitating are registration and notification requirements, which are governed by both state and federal laws. Notification statutes in particular carry with them a host of negative ramifications for the individuals affected but also impose cost on public coffers and public safety. Ex ante limitations on such restrictions would be most effective but are also largely politically unpalatable. Therefore, individual relief provisions, perhaps along the model of Model Penal Code: Sentencing, should be adopted and extended to sex offenders. Overall public safety and the reintegration of sex offenders would be served best if the United States moved away from public notification, limited registries to those convicted of sexual offenses and at high risk of committing another serious sex crime, and invested more heavily in prevention and the treatment of sex offenders.

Goodwin on Embryos and Fetuses

Michele Goodwin (University of California, Irvine School of Law) has posted If Embryos and Fetuses Have Rights (Law & Ethics of Human Rights, Vol. 11, No, 2, 2017, pp.189-224) on SSRN. Here is the abstract:

 

What exactly does it mean to be human or for that matter a “nonhuman”? This essay unpacks questions regarding the personhood of embryos and fetuses. It takes as its lead the escalating political demand for embryos to attain rights and the status of children. The essay argues that such political demands are not in isolation physically, medically, or legally of women’s health and rights. It makes the case that embryos and fetuses cannot be granted rights without impermissibly implicating pregnant women. Thus, the essay argues against the extension of criminal and tort law to punish pregnant women under fetal protection laws by drawing an analogy to the duty to rescue jurisprudence.