CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Opinion on the Constitutionality of Robert Mueller's Appointment Steven G. Calabresi Northwestern University - Pritzker School of Law Date Posted: 25 May 2018	3,984
2.	The Writ-of-Erasure Fallacy Jonathan F. Mitchell Stanford Law School Date Posted: 25 Apr 2018	196
3.	What to Expect When You Are Arrested: A Guide to Navigating for Unhoused Defendants Brittany Chiechi, Ivona Ogramic, Colleen Rowe and Sara Rankin Seattle University, School of Law, Students, Seattle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law Date Posted: 04 May 2018	177
4.	Relative Plausibility and its Critics Ronald J. Allen and Michael S. Pardo Northwestern University Law School and University of Alabama School of Law Date Posted: 17 May 2018 [5th last week]	166
5.	Challenging the Punitiveness of 'New-Generation' SORN Laws Wayne A. Logan Florida State University - College of Law Date Posted: 29 May 2018 [4th last week]	166
6.	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	139
7.	Punishing Risk Erin Collins University of Richmond School of Law Date Posted: 17 May 2018 [new to top ten]	128
8.	Privacy and the Criminal Process: Selvi v State of Karnataka Gautam Bhatia Yale University - Law School Date Posted: 22 Apr 2018 [7th last week]	126
9.	The Public Safety Assessment: A Re-Validation and Assessment of Predictive Utility and Differential Prediction by Race and Gender in Kentucky Matthew DeMichele, Peter Baumgartner, Michael Wenger, Kelle Barrick, Megan Comfortand Shilpi Misra RTI International, RTI International, RTI International, RTI International, RTI International and RTI International Date Posted: 30 Apr 2018 [8th last week]	123
10.	Arrests As Guilt Anna Roberts Seattle University School of Law Date Posted: 26 Apr 2018 [9th last week]	121

O'Rourke on Parallel Enforcement and Agency Interdependence

Anthony O'Rourke (University at Buffalo Law School) has posted Parallel Enforcement and Agency Interdependence (Maryland Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Parallel civil and criminal enforcement dominates public enforcement of everything from securities regulation to immigration control. The scholarship, however, lacks any structural analysis of how parallel enforcement differs from other types of interagency coordination. Drawing on original interviews with prosecutors, regulators, and white-collar defense attorneys, this Article is the first to provide a realistic presentation of how parallel enforcement works in practice. It builds on this descriptive account to offer an explanatory theory of the pressures and incentives that shape parallel enforcement. The Article shows that, in parallel proceedings, criminal prosecutors lack the gatekeeping monopoly that traditionally defines their relationships with investigating agents. This constitutive feature of parallel proceedings explains many of the institutional design choices that shape our regimes of overlapping civil and criminal enforcement.

Yesberg & Bradford on Affect and Trust as Predictors of Public Support for Armed Police

Julia Yesberg and Ben Bradford (University College London - Jill Dando Institute of Security and Crime Science and University College London - Jill Dando Institute of Security and Crime Science) have posted Affect and Trust as Predictors of Public Support for Armed Police: Evidence from London on SSRN. Here is the abstract:

 

Police in England, Scotland and Wales operate largely unarmed, and have done since the formation of the London Metropolitan Police in 1829. However, recent terror attacks and concern over serious violent crime have prompted increased funding for armed officers and even calls for routine arming of police. In this paper we present results from the first in-depth study of public attitudes toward the arming of more police. Starting from the assumption that most people have little concrete knowledge of the potential benefits and risks of doing so, we show that trust, and particularly affective responses to the idea of armed police, are central in shaping support for the routine arming of more officers. A range of other sociological and psychological variables are also important, but only in as much as they are correlated with trust and, again, particularly affect. Our findings have implications not only for this specific policy development, but also wider consideration of lay reactions to changes in police policy and technology.

Beaudry on Intellectually Disabled Witnesses

Jonas-Sébastien Beaudry (McGill University - Institute for Health and Social Policy) has posted The Intellectually Disabled Witness and the Requirement to Promise to Tell the Truth (Dalhousie Law Journal, Volume 40, Number 1, Spring 2017) on SSRN. Here is the abstract:

 

Mentally disabled victims of sexual crimes may be prevented from acting as witnesses in a criminal trial if their mental capacity is challenged. They face an important obstacle to access justice if the case against their alleged aggressor mostly relies on their testimony. In R. v. D.A.I., in 2012, the Supreme Court of Canada revisited the Canada Evidence Act’s requirement of promising to tell the truth and lowered the previously ambiguous threshold of cognitive capacities required to satisfy this requirement. The Evidence Act has been amended in 2015 to reflect the Court’s decision. While apparently facilitating people with mental disabilities’ (PMD) access to justice, I propose that the Court’s interpretation of the Evidence Act contains a problematic normalizing outlook on PMD qua legal subjects, leaves some problems untouched, and could potentially deflate the political urgency of addressing them.

Kalb on Counsel Access in Pre-Trial Detention

Johanna Kalb (Loyola University New Orleans College of Law) has posted Gideon Incarcerated: Access to Counsel in Pre-Trial Detention (Forthcoming, 9(1) U.C. Irvine Law Review (Fall 2018)) on SSRN. Here is the abstract:

 

As the population of incarcerated persons has swelled in local, state, and federal facilities around the country, the infrastructure supporting the attorney-client relationship is under increasing stress. The result is an array of new cases about the difficulties of lawyering in jails and prisons. These cases challenge the lack of private space for legal visits, reductions in visiting hours, remote carceral placements, interference with legal mail, and monitoring of legal phone calls and legal email. Despite (or perhaps because of) these mounting challenges, many courts have become less receptive to Sixth Amendment claims from people behind bars, putting the right to counsel at risk. This Article traces the hidden ways in which mass incarceration has worked to degrade the right to counsel, both in fact and in law, for incarcerated criminal defendants. It then proposes possibilities for reinvigorating the Sixth Amendment’s protections for incarcerated defendants, through intersecting strategies for regulation and structural litigation, with the ultimate goal of breaking our national reliance on pretrial detention. Building on a 50-state survey of the jail standards governing the attorney-client relationship, the Article illustrates how the Sixth Amendment’s protections are currently understood by those who must facilitate them, and then proposes a new litigation strategy to catalyze reform.

Lerner on Originalism and Infancy

Craig S. Lerner (George Mason University - Antonin Scalia Law School, Faculty) has posted Originalism and the Common Law Infancy Defense (American University Law Review, Vol. 67) on SSRN. Here is the abstract:

 

Justice Thomas and the late Justice Scalia consistently argued that the original meaning of the Eighth Amendment was to foreclose only those modes or acts of punishment that were considered cruel and unusual at the time the Bill of Rights was adopted. With respect to juvenile criminal responsibility, this would mean that the Constitution contemplated an infancy defense no broader than what existed in 1791. Yet the common law infancy defense, as sketched by originalist judges, seems barbaric. It treated all fourteen-year-olds as adults, and it permitted the imposition of punishment—even capital punishment—on offenders as young as seven.

This Article argues that the common law infancy defense was more nuanced than modern observers often recognize.

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Moore et al. on Privileging Public Defense Research

Janet Moore, Ellen Yaroshefsky and Andrew Davies (University of Cincinnati College of Law, Hofstra University - Maurice A. Deane School of Law and Government of the State of New York - New York State Office of Indigent Legal Services) have posted Privileging Public Defense Research (Forthcoming in Mercer Law Review Vol. 69, No. 3, Spring 2018) on SSRN. Here is the abstract:

 

Empirical research on public defense is a new and rapidly growing field in which the quality of attorney-client communication is emerging as a top priority. For decades, law has lagged behind medicine and other professions in the empirical study of effective communication. The few studies of attorney-client communication focus mainly on civil cases. They also tend to rely on role-playing by non-lawyers or on post hoc inquiries about past experiences. Direct observation by researchers of real-time defendant-defender communication offers advantages over those approaches, but injecting researchers into the attorney-client dyad is in tension with legal and ethical precepts that protect the very communication that is being studied. This Article discusses these problems and some responsive strategies. After assessing the available alternatives, the Article argues for judicial enforcement of an evidentiary privilege that protects and promotes empirical research on this high-priority topic.

McJunkin & Prescott on Technological Monitoring of Convicted Sex Offenders

Ben A. McJunkin and J.J. Prescott (University of Michigan Law School and University of Michigan Law School) have posted Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders (New Criminal Law Review, Vol. 21, Summer 2018 (Forthcoming)) on SSRN. Here is the abstract:

 

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices. Many offenders will be monitored for life. The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as “civil” in character — and courts have seemed to agree. In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil character of the surveillance. Grady left open the question whether the search — and the state’s technological monitoring program more generally — was constitutionally reasonable. This Essay considers the doctrine and theory of Fourth Amendment reasonableness as it applies to both current and envisioned sex offender monitoring technologies to evaluate whether the Fourth Amendment may serve as an effective check on post-release monitoring regimes.

Yesterday's criminal law/procedure cert grants

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

• Gamble v. United States: Whether to overrule the “separate sovereign” exception to the double jeopardy clause
• Nieves v. Bartlett: Whether probable cause can defeat a First Amendment retaliatory arrest claim

Opinion rejecting habeas based on ineffective counsel claim

The Court issued a per curiam opinion in Sexton v. Beaudreaux.

Opinion rejecting as premature qualified immunity for arresting officer who insisted that arrestee stop praying

The Court issued a per curiam opinion in Sause v. Bauer.

Dissent from cert denial in capital case

Justice Breyer dissented in Jordan v. Mississippi.

Rumbaut et al. on Immigration

Rubén G. Rumbaut, Katie Dingeman and Anthony Robles (University of California - Irvine - Department of Sociology, Department of Sociology and California State University, Los Angeles - Department of Sociology, Students) has posted Immigration and Crime and the Criminalization of Immigration (The Routledge International Handbook of Migration Studies, edited by Steven J. Gold and Stephanie J. Nawyn (2018, Forthcoming)) on SSRN. Here is the abstract:

 

Historically in the United States, periods of large-scale immigration have been accompanied by perceptions of threat and stereotypes of the feared criminality of immigrants. A century ago major commissions investigated the connection of immigration to crime; each found lower levels of criminal involvement among the foreign-born. The present period echoes that past. Over the past quarter century, alarms have been raised about large-scale immigration, and especially about undocumented immigrants from Latin America. But over the same period, violent crime and property crime rates have been cut in half; the decline in crime has been more pronounced in cities with larger shares of immigrants; and foreign-born young men are much less likely to be incarcerated than natives. The evidence demonstrating lower levels of criminal involvement among immigrants is supported by a growing number of contemporary studies. At the same time the period has been marked by the criminalization of immigration itself, and by the confluence of immigration and criminal law and enforcement apparatuses. A series of critical events succeeded by moral panics influenced the passage of hyper-restrictive laws and a massive injection of institutional resources that has built the “crimmigration” enforcement apparatus into the “formidable machinery” underpinning mass deportation today.

Arnett on Electronic Surveillance of Juveniles

Chaz Arnett (University of Pittsburgh School of Law) has posted Virtual Shackles: Electronic Surveillance and the Adultification of Juvenile Courts (Journal of Criminal Law & Criminology, Vol. 108, p. 399, 2018) on SSRN. Here is the abstract:

 

In recent years, there has been a groundswell of attention directed at problems within the American criminal justice system, led in part by Michelle Alexander’s groundbreaking book, The New Jim Crow, and most recently through the efforts of the Black Lives Matter movement. This increased focus on the harms of over-incarceration and net-widening, has had the benefit of introducing to the public other practices utilized in the criminal justice system, such as the widespread use of ankle monitors to track the location of defendants and released offenders. Yet, despite this greater attention, legal scholarship has only recently begun to grapple with many of the issues arising at the intersection of criminal justice and technology, and even more, how these issues affect the juvenile justice system. This paper seeks to draw attention to and generate greater discussion on the ways in which advancing surveillance technologies are deployed in the criminal justice system and the reciprocal impact it has on the development of juvenile justice policies and practices. Specifically, it examines the use of electronic surveillance technology by juvenile courts as a manifestation of adultification, where juvenile courts adopt a “one size fits all” approach and implement tools and practices from the adult criminal justice system, despite having great discretion to explore alternatives.

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Young on Parole Hearings and Victims' Rights

Kathryne M. Young (University of Massachusetts Amherst - Department of Sociology) has posted Parole Hearings and Victims' Rights: Implementation, Ambiguity, and Reform (Connecticut Law Review 49: 431–498) on SSRN. Here is the abstract:

 

Despite the increasing recognition of victims' rights, and despite the large role parole hearings play in the criminal justice system, discussion of the intersection between these two issues has been curiously sparse. Across the United States, victim participation in parole hearings is currently expanding, yet little is known about how this participation operates on the ground. This Article uses a California victims' rights initiative called "Marsy's Law" to think critically about the role that crime victims and their loved ones should play in parole hearings. I use in-depth interviews with California releasing authorities to describe the implementation of Marsy's Law and its effects on parole hearings for lifer inmates.

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Tuerkheimer on Sexual Agency and Rape Law Reform

Deborah Tuerkheimer (Northwestern University - Pritzker School of Law) has posted Sexual Agency and the Unfinished Work of Rape Law Reform (Research Handbook on Feminist Jurisprudence (Cynthia Grant Bowman & Robin West, eds.) (Edward Elgar Publishing) (2018 Forthcoming)) on SSRN. Here is the abstract:

 

For half a century, feminist legal scholars and activists have worked to reconstruct the retrograde foundations of rape law. In place of chastity protection, I argue that sexual agency underpins the modern law of rape. I begin by describing the construct of sexual agency, emphasizing how feminist insights have enriched a more familiar ideal of autonomy in ways that bear directly on sexual violence. I then apply the theory of sexual agency to three areas of relatively successful law reform efforts—substantive, evidentiary and procedural. I also consider the limits of rape law’s progress, again by reference to sexual agency. The agency frame recasts how a set of necessary reforms has fallen short of its intended target. I consider one final challenge to women’s agency that has become increasingly salient in the current #MeToo moment—acquiesced-to (unwanted consensual) sex. I conclude that, while the promise of female sexual agency remains unfulfilled, it should endure as the desideratum of reform.

Engel on Transparent Punishment

Christoph Engel (Max Planck Institute for Research on Collective Goods) has posted Turning the Lab into Jeremy Bentham's Panopticon: A Lab Experiment on the Transparency of Punishment on SSRN. Here is the abstract:

 

The most famous element in Bentham’s theory of punishment, the Panopticon Prison, expresses his view of the two purposes of punishment, deterrence and special prevention. This paper investigates Bentham’s intuition in a public goods lab experiment, by manipulating how much information on punishment experienced by others is available to would-be offenders. Compared with the tone that Jeremy Bentham set, the result is non-expected: If would-be offenders learn about contributions and punishment of others at the individual level, they contribute much less to the public project.

Joh on Policing the Smart City

Elizabeth E. Joh (University of California, Davis - School of Law) has posted Policing the Smart City (__ International Journal of Law in Context __ (Forthcoming)) on SSRN. Here is the abstract:

 

What will be the consequences for policing as cities become increasingly “smarter”? The emerging questions about policing and the smart city thus far have focused primarily on the increased surveillance capacity that a highly networked urban setting provides for law enforcement. More cameras and sensors will mean more watching and less freedom from being watched. The perception of ubiquitous government surveillance might quell dissent and inhibit free expression. As a result, concerns about policing and the smart city echo other responses to surveillance technologies. This essay proposes a different analysis: as cities become “smarter,” they increasingly embed policing itself into the urban infrastructure. Policing is inherent to the smart city.

"INFLUENCE & INJUSTICE: AN INVESTIGATION INTO THE POWER OF PROSECUTORS"

The story is in the Florida Herald-Tribune, via the NACDL news scan:

In 2015 and 2016 alone — when she handled more than 100 felony drug cases — blacks received sentences that were nearly four times as long on average  as those handed down to white offenders.

That put her at the top of a list of Duval County prosecutors’ racial disparities in sentencing for felony drug crimes, according to a nine-month investigation by the Herald-Tribune and the Florida Times-Union.

"First Thoughts on Carpenter v. United States"

Orin Kerr has this typically thoughtful post at The Volokh Conspiracy.