CrimProf Blog

Gardner on Racial Profiling

Trevor George Gardner (University of Washington - School of Law) has posted Racial Profiling as Collective Definition (2 Soc. Inclusion, no. 3, 2014, at 52-59) on SSRN. Here is the abstract:

 

Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice. However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In the article, I review the literature on group distinction to discern its relevance to the practice and study of racial profiling. I argue that the costs of racial profiling extend beyond inefficient policing and the humiliation of law-abiding minority pedestrians and drivers. Racial profiling is simultaneously a process of perception and articulation of relative human characteristics (both positive and negative); it binds and reifies the concepts of race and criminality, fixing them into the subconscious of the profiled, the profiler, and society at large.

Siegel on McCleskey v. Kemp

Reva Siegel (Yale University - Law School) has posted Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in Mccleskey V. Kemp—And Some Pathways for Change (Northwestern University Law Review, Vol. 112, Forthcoming) on SSRN. Here is the abstract:

 

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive.

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Soubise & Woolley on Prosecutors and Justice

Laurène Soubise and Alice Woolley (University of Warwick and University of Calgary) have posted Prosecutors and Justice: Insights from Comparative Analysis (Fordham International Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

This paper compares prosecutorial practices, regulation, norms and challenge in the United States, Canada and France in order to better understand prosecutorial misconduct and how to effectively address it. The paper argues that if we want to change prosecutorial behavior to a significant extent, we need to change the structural factors that produce the behavior we do not want. This includes introducing more effective and rigorous regulation of prosecutorial conduct. The paper acknowledges that these change would be difficult if not impossible to implement.

 

Scott-Hayward & Ottone on California's Unconstitutional Bail System

Christine S. Scott-Hayward and Sarah Ottone (California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management and Georgetown University, Law Center, Students) has posted Punishing Poverty: California's Unconstitutional Bail System (70 Stan. L. Rev. Online 167 (2018)) on SSRN. Here is the abstract:

 

Relying on an empirical study of pretrial detention and bail that we recently conducted in Southern California, this Essay argues that bail schedules are unconstitutional because they are used presumptively in a way that typically denies defendants the individualized pretrial detention determination to which they are entitled.

Lichtenberg on Problems with Life Without Parole Sentences

Judith Lichtenberg (Georgetown University) has posted Against Life Without Parole (Forthcoming in Washington University Jurisprudence Review) on SSRN. Here is the abstract:

 

Over 40,000 people in the United States today are serving life without parole sentences (LWOP) — more than triple the number in 1992. This figure understates the case, since parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole. I argue that LWOP sentences should be abolished. 

After reviewing the facts about LWOP, I show that of the standard reasons for punishment only retributivism can hope to justify it.I investigate the varieties of retributivism and argue that plausible versions do not entail or even recommend it.

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Coccia on Violent Crime and Income Inequality

Mario Coccia (National Research Council of Italy (CNR)) has posted Violent Crime Driven by Income Inequality between Countries (Turkish Economic Review, vol. 5, n. 1, pp. 33-55, 2018. DOI: 10.1453/ter.v5i1.1576) on SSRN. Here is the abstract:

 

The literature has suggested several approaches to explain violent crime, such as the heat hypothesis that more violence is associated to very hot temperature. However, the manifold determinants of violent crime in society are hardly known. This study shows that, controlling the climate, the intentional homicides (per 100,000 people) can be explained by the high level of income inequality, both in hot tropical areas and in temperate regions of the globe. Overall, then, the socioeconomic inequality is one of factors that generates aversive social environments and, as a consequence, a deteriorated human behavior leading to high rates of intentional homicides in society.

Diamond on Practicing American Indian Criminal Law

James D. Diamond (University of Arizona - Indigenous Peoples Law And Policy Program) has posted An Overview of Practicing American Indian Criminal Law in Federal, State, and Tribal Courts, and an Update About Recent Expansion of Criminal Jurisdiction Over Non-Indians (Federal Lawyer, April 2018, at 18) on SSRN. Here is the abstract:

 

After the U.S. Congress extended, in 2013, the Violence Against Women Act, criminal defendants or defense attorneys are significantly more likely to find themselves appearing in American Indian tribal courts. The article explains the very complex jurisdictional rules that govern criminal law and American Indians or Indian tribes. With an update to early 2018, it explains the most recent changes in the handling of domestic violence cases in tribal courts and the enhanced enforcement now occurring by tribal police and prosecutors. Finally, the article offers general advice to lawyers not familiar with practicing law in tribal courts.

Allen & Pardo on Relative Plausibility

Ronald J. Allen and Michael S. Pardo (Northwestern University Law School and University of Alabama School of Law) have posted Relative Plausibility and its Critics on SSRN. Here is the abstract:

 

Within legal scholarship there is a tendency to use (perhaps overuse) “paradigm shift” in ways far removed from the process famously described by Thomas Kuhn. Within the field of evidence, however, a phenomenon very similar to a paradigm shift, in the Kuhnian sense, is occurring. Although not on the scale of the transformation from Newtonian to Einsteinian physics or other tectonic shifts in science, the best understanding of juridical proof is shifting from probabilism to explanationism. For literally hundreds of years, proof at trial was assumed to be probabilistic. This assumption was given sustained scholarly attention and support beginning with the 1968 publication of John Kaplan’s path-breaking article that generated a rich literature explaining virtually all aspects of juridical proof as probabilistic, from the basic nature of relevancy through the processing of information to the final decision about the facts. Although probabilism quickly became the dominant paradigm, some analytical difficulties were detected quite early (“anomalies” or “irritants” in the words of Kuhn), beginning with L. Jonathan Cohen’s demonstration of certain proof paradoxes. These were extended by Ronald Allen, who also demonstrated the incompatibility of Bayesian reasoning with trials and proposed an analytical alternative. Again a complex literature ensued with the defenders of the dominant paradigm attempting to explain away the anomalies or to shield the probabilistic paradigm from their potentially corrosive effects (in what in fact on a very small scale is precisely what Kuhn explained and predicted with respect to paradigm shifts in science). Over the last two decades, these anomalies have become too irritating to ignore, and the strengths of the competing paradigm involving explanatory inferences (referred to as the relative plausibility theory) have become too persuasive to dismiss. Thus the paradigm shift that the field is now experiencing. 

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Kesari et al. on Deterring Cybercrime

Aniket Kesari, Chris Jay Hoofnagle and Damon McCoy (University of California, Berkeley - Jurisprudence and Social Policy Program, University of California, Berkeley - School of Information and New York University (NYU) - NYU Tandon School of Engineering) have posted Deterring Cybercrime: Focus on Intermediaries (32(3) Berkeley Technology Law Journal 1093 (2017)) on SSRN. Here is the abstract:

 

This Article discusses how governments, intellectual property owners, and technology companies use the law to disrupt access to intermediaries used by financially-motivated cybercriminals. Just like licit businesses, illicit firms rely on intermediaries to advertise, sell and deliver products, collect payments, and maintain a reputation. Recognizing these needs, law enforcers use the courts, administrative procedures, and self-regulatory frameworks to execute a deterrence by denial strategy. Enforcers of the law seize the financial rewards and infrastructures necessary for the operation of illicit firms to deter their presence.

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Collins on Actuarial Sentencing

Erin Collins (University of Richmond School of Law) has posted Punishing Risk (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

Actuarial recidivism risk assessments – or statistical predictions of the likelihood of future criminal behavior – drive a number of core criminal justice decisions, including where to police, who to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice has entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understandable. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration. 

And yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing.

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Green on Measuring Harm in Revenge Porn Cases

J. Remy Green has posted A (Nude) Picture Is Worth a Thousand Words — But How Many Dollars?: Using Copyright as a Metric for Harm in ‘Revenge Porn’ Cases (Rutgers Law Record, Vol. 45, 2018) on SSRN. Here is the abstract:

So-called “Revenge Porn” — pornography published without the subject’s permission — is a growing issue. While much discussion exists about how best to outlaw the practice, less has been said about precisely how to measure the harm done. This paper is grounded in an in-depth analysis of the particular way that the Federal Sentencing Guidelines prioritize financial harms and non-financial harms, specifically looking at how many dollars of harm it takes to buy each additional sentencing point. I graph the enforcement priorities for financial and non-financial harm using the numbers federal agencies use for the value of a statistical life. 

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Litman on Legal Innocence and Federal Habeas

Leah Litman (University of California, Irvine School of Law) has posted Legal Innocence and Federal Habeas (Virginia Law Review, Vol. 104, No. 3, 2018) on SSRN. Here is the abstract:

 

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence — the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted. The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations. This Article highlights how the doctrine has started to treat these “legal innocence” cases as cases in which defendants are innocent, as well as the reasons why it has done so. As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate. These cases raise similar concerns and implicate many of the same features of our criminal law system. By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.

Barkow on Classical Liberal Criminal Law

Rachel E. Barkow (New York University School of Law) has posted Classical Liberal Criminal Law on SSRN. Here is the abstract:

 

This essay, written for a festschrift for Richard Epstein, argues that classical liberals should support robust constitutional protections in criminal matters. It specifically highlights the need for robust Eighth Amendment review.

Schwartz on Systems Failures in Policing

Joanna C. Schwartz (University of California, Los Angeles (UCLA) - School of Law) has posted Systems Failures in Policing (Suffolk University Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This Essay, an adaptation of my 2018 Donahue Lecture, argues that acts of police violence and overreach should be viewed as systems failures. Researchers who study error in aviation, medicine, and other complex organizations agree that errors are the product of human failings and poorly designed systems. When tragedies occur, human error almost always plays a role — people misperceive information, process it incorrectly, make careless mistakes, and sometimes act recklessly or maliciously. But faulty systems also play a role — technologies can be confusing, rigorous schedules can fatigue workers, organizational culture can stifle productive communication, and policies can put workers in situations where they have to make difficult decisions under conditions of high stress. A key insight of this body of research is that it is impossible to cure limitations of human perception, cognition, and decisionmaking. Instead of focusing exclusively on training people to change their behavior — and threatening them with criminal, civil, or department sanctions if they fail to do so — the systems approach adjusts equipment, schedules, protocols, and policies in ways that can make it harder for people to err and can reduce the impact of error when it inevitably occurs.

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Court dismisses as improvidently granted cert in case about Fifth Amendment's applicability in probable-cause hearing

The case is City of Hays v. Vogt.

Opinion holding Mandatory Victims Restitution Act does not cover private investigation costs

Justice Breyer delivered the opinion for a unanimous Court in Lagos v. United States.

Opinion holding automobile exception does not justify warrantless entry on curtilage

Justice Sotomayor delivered the opinion of the Court in Collins v. Virginia. Justice Thomas filed a concurring opinion. Justice Alito dissented.

Fissell on Federalism and Constitutional Criminal Law

Brenner Fissell (Hofstra University - Maurice A. Deane School of Law) has posted Federalism and Constitutional Criminal Law (Hofstra Law Review, Vol. 46, No. 489, 2018) on SSRN. Here is the abstract:

 

A vast body of constitutional law regulates the way that police investigate crimes and the way that criminal cases are handled at trial. The Supreme Court has imposed far fewer rules regarding what can be a crime in the first place, how it must be defined, and how much it can be punished. What explains this one-sided favoring of “procedure” over “substance?” This Article aims to unearth and assess the justification that the Court itself most often uses when it refuses to place constitutional limits on substantive criminal law: federalism. While the Court often invokes the concept to rationalize its restraint, this Article argues that federalism is not a universally effective argument against the imposition of these types of constitutional limits. Instead, different variants of “federalism” vary in their strength when used to resist different types of constitutional rules, and often the federalism-based argument is unjustified.

Kent on Congress and the Independence of Federal Law Enforcement

Andrew Kent (Fordham University School of Law) has posted Congress and the Independence of Federal Law Enforcement (Forthcoming in 52 U.C. Davis Law Review (2018)) on SSRN. Here is the abstract:

 

Not since the Nixon presidency has the issue of the professional neutrality and independence of federal law enforcement from White House interference or misuse been such a pressing issue. This article describes the problem, details Congress’s important role in responding to it during the 1970s, and makes specific recommendations for Congress today. As important background, this article recounts the abuses of the Hoover era at the FBI, and the ways the Nixon White House sought to both impede and corrupt the Department of Justice and the FBI. It then provides a rich description of what an engaged Congress looked like—the Congress of the 1970s—when it reacted to these abuses by helping to develop laws, structures, and norms of law enforcement independence and neutrality that served this country well for two generations. Drawing both on ideas floated in Congress post-Watergate, as well as institutional design features from independent regulatory agencies, this article then suggests a menu of options for a future Congress, if it could move beyond gridlock and partisanship to engage again with pressing issues about the White House's relationship to federal law enforcement. Most options I survey here are constitutionally uncontroversial. But two options, both of which were proposed by reformist Senators soon after Watergate, are more aggressive and constitutionally problematic: statutory qualifications limiting the range of appointees for senior DOJ roles, and a statutory for-cause restriction on the President's ability to remove the FBI Director. After setting out arguments for the constitutionality of these proposals, I conclude with a menu of concrete policy recommendations for a future Congress that wishes to get off the sidelines and again play a constructive role in protecting the country from the abuse and misuse of our powerful and essential federal law enforcement institutions.

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  Last Revised: 13 Apr 2018	432
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	427
3.	The Consensus Myth in Criminal Justice Reform Benjamin Levin University of Colorado Law School Date Posted: 16 Apr 2018	302
4.	Pakistani Blasphemy Law between Hadd and Siyasah: A Plea for Reappraisal of the Ismail Qureshi Case Muhammad Ahmad International Islamic University, Islamabad Date Posted: 10 May 2018 [5th last week]	195
5.	Protectors of Predators or Prey: Bystanders and Upstanders Amid Sexual Violence Zachary D. Kaufman Yale University - Law School Date Posted: 03 Apr 2018 [6th last week]	156
6.	Predicting Enemies Ashley Deeks University of Virginia - School of Law Date Posted: 29 Mar 2018 [7th last week]	131
7.	Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts Elizabeth D. Katz Stanford Center for Law and History Date Posted: 27 Apr 2018 [8th last week]	123
8.	Too High a Price 2: Move on to Where? Nantiya Ruan, Elie Zwiebel, Michael Bishop, Bridget DuPey, Nicole Jones, Ashley Kline, Joshua Mitson and Darren O’Connor University of Denver Sturm College of Law, University of Denver Sturm College of Law, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver - Sturm College of Law, Students, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project and University of Denver Sturm College of Law - Homeless Advocacy Policy Project Date Posted: 07 May 2018 [10th last week]	122
9.	The Expansion of Child Pornography Law Carissa Byrne Hessick University of North Carolina School of Law Date Posted: 21 Apr 2018	117
10.	If Embryos and Fetuses Have Rights Michele Goodwin University of California, Irvine School of Law Date Posted: 17 Apr 2018 [new to top ten]	98