CrimProf Blog

Moncada on The Politics of Criminal Victimization

Eduardo Moncada (Barnard College) has posted The Politics of Criminal Victimization: Pursuing and Resisting Power (Perspectives on Politics, Forthcoming) on SSRN. Here is the abstract:

 

Within the growing research on the politics of crime victims are seen as resigned to their fates at the hands of powerful criminal actors. But the conventional approach to criminal victimization as a traumatic but one-time act obscures from view a layer of contentious and dynamic politics between victims and criminal actors that we have yet to analyze. I develop a new theoretical framework to analyze the strategic behaviors that victims and criminals undertake as part of the political process of criminal victimization. The framework enables us to better observe, conceptualize and theorize how victims exercise agency vis-à-vis their criminal perpetrators, and the behaviors and practices that criminal victimizers undertake but which are overlooked by the traditional focus on their use and threat of coercive force. I illustrate the framework’s analytic utility with an empirical analysis of the victimization of informal street vendors in a major Latin American city under a criminal protection racket. The argument and empirical findings suggest ways to expand and deepen the research agenda on the politics of criminal victimization.

Westen on Hohfeld

Peter K. Westen (University of Michigan Law School) has posted Poor Wesley Hohfeld (San Diego Law Review, Vol. 55, No. 2, 2018) on SSRN. Here is the abstract:

 

John Wesley Hohfeld has lost one audience and gained another within the century since he published his seminal Fundamental Legal Conceptions. Hohfeld originally conceived of his work as an aide to lawyers and law students. And law faculties initially embraced him with ardor. Over time, however, law faculties have lost interest in Hohfeld, and moral philosophers have taken their place, such that it is difficult to read widely today regarding the ethics of war and self defense without coming across supportive references to Hohfeld. Unfortunately, moral theorists too often invoke Hohfeld for propositions that he explicitly disavowed. Using Uwe Steinhoff and other commentators as foils, I discuss several of the most common errors that moral and legal commentators make about Hohfeld.

Priester on A Warrant Requirement Resurgence?

Benjamin J. Priester (Florida Coastal School of Law) has posted A Warrant Requirement Resurgence? The Fourth Amendment in the Roberts Court (St. John's Law Review , Vol. 93, 2019, Forthcoming) on SSRN. Here is the abstract:

 

My article challenges the conventional wisdom that the United States Supreme Court’s Fourth Amendment jurisprudence over the past thirty years is marked by a consistent and continuing decline in the scope and significance of the warrant requirement. Instead, I argue that the past decade of the Roberts Court has produced a resurgence in the warrant requirement as a constitutional constraint on police investigations. The highly anticipated decision in Carpenter v. United States (June 22, 2018), which held unconstitutional the acquisition of historical cell-site location information about a defendant’s mobile phone because the Government obtained those corporate business records without a search warrant, is the latest case in this ongoing doctrinal development. Previous prominent decisions involving an inspection of digital data on a smartphone, GPS tracking of a motor vehicle, and a compulsory blood draw to determine blood-alcohol content in a routine drunk-driving investigation also ruled in favor of requiring search warrants. My article considers the full span of the Roberts Court’s Fourth Amendment decisions to conclude that the warrant requirement is likely to play an increasingly significant role in the doctrine in the years ahead, especially as the Court continues to confront the Fourth Amendment implications of data-driven surveillance and other technology-based police investigations in the internet age.

Kubrin et al. on Institutional Completeness and Crime Rates in Immigrant Neighborhoods

Charis Kubrin, Young-An Kim and John R. Hipp (University of California, Irvine, University of California - Irvine - Department of Criminology, Law and Society and University of California - Irvine - Department of Criminology, Law and Society) have posted Institutional Completeness and Crime Rates in Immigrant Neighborhoods (Journal of Research in Crime and Delinquency, 2018, DOI/10.1177/0022427818799125) on SSRN. Here is the abstract:

Objectives: A growing body of research finds that immigration has a null or negative association with neighborhood crime rates. We build on this important literature by investigating the extent to which one theory, institutional completeness theory, may help explain lower crime rates in immigrant communities across the Southern California region. Specifically, we test whether two key measures of institutional completeness — the presence of immigrant/ethnic voluntary organizations in the community and the presence and diversity of immigrant/ethnic businesses in the community — account for lower crime rates in some immigrant communities.

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Shane on Drones, Journalists, and Police

Beth Shane (Debevoise & Plimpton - New York Office) has posted After 'Knowing Exposure': First and Fourth Amendment Dimensions of Drone Regulation (New York University Annual Survey of American Law, Volume 73, Issue 2, 2018) on SSRN. Here is the abstract:

In a series of Fourth Amendment cases beginning with Katz v. United States, the Supreme Court has held that the warrant requirement under the Fourth Amendment is triggered only when a government search violates an individual’s “reasonable expectation of privacy.” An expectation of privacy is reasonable only to the extent that the information searched has not already been “knowingly exposed” to a third party (ex. the telephone company or bank) or the public at large. The Court often has defined the scope of a person’s reasonable expectation of privacy through a fact-based, probabilistic analysis of the likelihood of third party or public access to the pertinent information. As a result, under the secrecy paradigm, most people no longer retain a reasonable expectation of privacy in the intimate details of their lives.

If the ubiquity of smart phones exploded the privacy boundaries erected by Katz, then the advent of drone technology and the incorporation of commercial drones into navigable airspace under recent Federal Aviation Administration (FAA) regulations only render the task of untangling the Fourth Amendment from patterns of individual behavior more urgent.

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Walvisch on Mental Disorders and Sentencing

Jamie Walvisch (Monash University - Faculty of Law) has posted 'Mental Disorder' and Sentencing: Resolving the Definitional Problem ((2018) 26 Journal of Law and Medicine 1) on SSRN. Here is the abstract:

 

Mental health problems affect the majority of people who face the sentencing process. The fact that a convicted offender has mental health problems may be taken into account in various ways: it may mitigate or aggravate the penalty, or may affect the type of sanction that is imposed or its conditions. At present, sentencing judges use a two-stage process to determine the effect (if any) that an offender’s mental health problems should have on the sentencing determination. First, they ascertain whether the offender has a relevant mental health problem. If they find that he or she does, they then decide what effect that mental health problem should have on the sentencing determination. This article compares recent approaches that have been taken to the first stage of this process in Australia and Canada. It highlights difficulties with both approaches, and recommends replacing the current two-stage process with an integrated, single-stage approach.

Kerr on Compelled Decryption and the Privilege Against Self-Incrimination

Orin S. Kerr (University of Southern California Gould School of Law) has posted Compelled Decryption and the Privilege Against Self-Incrimination (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

This essay considers the Fifth Amendment barrier to orders compelling a suspect to enter in a password to decrypt a locked phone, computer, or file. It argues that a simple rule should apply: An assertion of privilege should be sustained unless the government can independently show that the suspect knows the password. The act of entering in a password is testimonial, but the only implied statement is that the suspect knows the password. When the government can prove this fact independently, the assertion is a foregone conclusion and the Fifth Amendment poses no bar to the enforcement of the order. This rule is both doctrinally correct and sensible policy. It properly reflects the distribution of government power in a digital age when nearly everyone is carrying a device that comes with an extraordinarily powerful lock.

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Devi-McGleish & Cox on Restorative Justice

Yasmin Devi-McGleish and David J. Cox (University of Wolverhampton and University of Wolverhampton) have posted From Weregild to a Way Forward? English Restorative Justice in its Historical Context (Wolverhampton Law Journal, Vol. 1, No. 1, 2018) on SSRN. Here is the abstract:

 

This article challenges the prevalent view of restorative justice as a new ‘technique’ within the English criminal justice system. By discussing a number of historical examples of non-traditional forms of justice, which the article argues can be seen as largely restorative in nature, it suggests that the use of restorative justice in the present day has a long tradition, albeit one whose historic practices and processes remain relatively unexplored by many criminologists. It does not presume to offer easy answers to the effectiveness or otherwise of restorative justice, but rather aims to present the ideas and theories behind the concept in an historical context in such a way as to illuminate possible avenues forward in its modern applications.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Tinder Lies Irina D. Manta Hofstra University - Maurice A. Deane School of Law Date Posted: 22 Aug 2018	298
2.	Robot Criminals Ying Hu Yale University, Law School Date Posted: 26 Aug 2018	176
3.	The Extraterritorial Reach of Tribal Court Criminal Jurisdiction Grant Christensen The University of North Dakota Date Posted: 24 Aug 2018	155
4.	Lies, Deceit, and Bullshit in Law Lawrence M. Solan Brooklyn Law School Date Posted: 05 Sep 2018 [5th last week]	119
5.	Online Child Sexual Exploitation: Towards an Optimal International Response Victoria Baines Bournemouth University - School of Computing Date Posted: 11 Sep 2018 [4th last week]	115
6.	Twenty Years of Web Scraping and the Computer Fraud and Abuse Act Andrew Sellars Boston University School of Law Date Posted: 14 Aug 2018 [7th last week]	86
7.	Execution by Nitrogen Hypoxia: The Search for Scientific Consensus Kevin Morrow Independent Date Posted: 29 Sep 2018 [8th last week]	78
8.	Ipeelee and the Duty to Resist Marie-Eve Sylvestre and Marie-Andrée Denis-Boileau University of Ottawa - Civil Law Section and University of Ottawa - Faculty of Law Date Posted: 31 Aug 2018 [9th last week]	67
9.	Neurohype and the Law: A Cautionary Tale Stephen Morse University of Pennsylvania Law School Date Posted: 06 Sep 2018 [10th last week]	67
10.	Sex Offenders, Custody and Habeas Wendy Calaway University of Cincinnati - Blue Ash Date Posted: 28 Aug 2018 [new to top ten]	57

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 [new to top ten]	675
2.	The Power of Prosecutors Jeffrey Bellin William & Mary Law School Date Posted: 08 Sep 2018 [1st last week]	212
3.	Artificial Intelligence and Role-Reversible Judgment Kiel Brennan-Marquez and Stephen E. Henderson University of Connecticut - School of Law and University of Oklahoma - College of Law Date Posted: 15 Aug 2018	135
4.	Prosecuting in the Shadow of the Jury Anna Offit New York University School of Law Date Posted: 21 Aug 2018	132
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	114
6.	Staying Faithful to the Standards of Proof Kevin M. Clermont Cornell Law School Date Posted: 08 Oct 2018 [new to top ten]	89
7.	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 [6th last week]	85
8.	Autonomy Isn’t Everything: Some Cautionary Notes on McCoy v. Louisiana W. Bradley Wendel Cornell University - School of Law Date Posted: 20 Aug 2018	82
9.	Policing the Admissibility of Body Camera Evidence Jeffrey Bellin and Shevarma Pemberton William & Mary Law School and Independent Date Posted: 11 Sep 2018 [10th last week]	61
10.	Video, Popular Culture, and Police Excessive Force: The Elusive Narrative of Over-Policing Susan A. Bandes DePaul University - College of Law Date Posted: 21 Aug 2018 [new to top ten]	57

Garrett on Evidence-Informed Criminal Justice

Brandon L. Garrett (Duke University School of Law) has posted Evidence-Informed Criminal Justice (George Washington Law Review, Vol. 86, No. 101, 2018) on SSRN. Here is the abstract:

 

The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along the lines of the National Institutes of Health. Following the report, police agencies continued to base their practices on conventional wisdom or “tried-and-true” methods. Prosecutors retained broad discretion, relying on their judgment as lawyers and elected officials. Lawmakers enacted new criminal statutes, largely reacting to the politics of crime and not empirical evidence concerning what measures make for effective crime control. Judges interpreted traditional constitutional criminal procedure rules in deference to the exercise of discretion by each of these actors. Very little data existed to test what worked for police or prosecutors, or to protect individual defendants’ rights. Today, criminal justice actors are embracing more data-driven approaches. This raises new opportunities and challenges. A deep concern is whether the same institutional arrangements that produced mass incarceration will use data collection to maintain the status quo. Important concerns remain with relying on data, selectively produced and used by officials and analyzed in nontransparent ways, without sufficient review by the larger research and policy community. Efforts to evaluate research in a systematic and interdisciplinary fashion in the field of medicine offer useful lessons for criminal justice. This Article explores the opportunities and concerns raised by a law, policy, and research agenda for an evidence-informed criminal justice system.

Myhand on The Reasonable Person in Police Encounters

Taurus Myhand has posted Redefining the Reasonable Person in Police Encounters: The Impact of the Mainstream News Media's Portrayal of Modern Police Conduct (University of Detroit Mercy Law Review, Forthcoming) on SSRN. Here is the abstract:

Who is the “reasonable person”? There is little doubt that every competent legal professional, both in law practice and in the academic setting, has spent a great deal of time attempting to define the reasonable person. “Reasonableness is largely a matter of common sense.” In police encounters, the definition is certainly important to the outcome of questionable police conduct. How the reasonable person is defined often determines whether a police officer has infringed on an individual’s Fourth Amendment guarantee to be secure in their person against unreasonable searches and seizures. As the narratives of the news media shape how some individuals view police conduct, undoubtedly, the changed attitudes will affect how those individuals respond should they be involved in a future police encounter.

This article explores the need for the courts to apply a redefined reasonable person analysis to the Mendenhall test in light of the changing perceptions of modern police conduct due to, at least partly, the mainstream news media’s unprecedented coverage and depictions of police violence.

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Jefferson-Bullock on Uncertainty in Modern Sentencing Reform

Jalila Jefferson-Bullock (Duquesne University - School of Law) has posted How Much Punishment is Enough?: Embracing Uncertainty in Modern Sentencing Reform (Brooklyn Journal of Law and Policy, Vol. 34, 2016) on SSRN. Here is the abstract:

It has now become fashionable to loudly proclaim that the U.S. criminal justice system is irreparably broken and requires a complete dismantling and total reconfiguration. The evidence is robust and the record is clear. Prisons are bloated and bursting with prisoners; budgets are ill endowed to support them; and offenders, due to excessive periods of unfruitful incapacitation, reenter society lacking in contributable and marketable skills. Racial disparities continue to corrupt charging and sentencing decisions; police brutality and human massacre are, woefully, commonplace; and the cycle continues.

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Zeiler & Puccetti on Crime, Punishment, and Legal Error

Kathryn Zeiler and Erica Puccetti (Boston University - School of Law and Boston University, School of Law, Students) have posted Crime, Punishment, and Legal Error: A Review of the Experimental Literature on SSRN. Here is the abstract:

When individuals violate the law, detection and verification of the violation are rarely, if ever, perfect. Before the state can dole out punishment, it must first identify a suspect and then produce sufficient evidence to persuade a judge and/or jury beyond some threshold level of confidence that the suspect, in fact, violated the law. The court might be uncertain that the state has the right person. If the suspect is undoubtedly the one who caused the harm, the court might be unsure about whether his act constitutes a violation of the law (e.g., whether the suspect was, in fact, speeding). The state, given the level of resources allocated to law enforcement, might not be able to produce a suspect.

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Casarez & Thompson on Better Crime Labs

Nicole B. Casarez and Sandra Guerra Thompson (University of St. Thomas and University of Houston Law Center) have posted Three Transformative Ideals to Build a Better Crime Lab (Georgia State University Law Review, Vol. 34, No. 4, 2018) on SSRN. Here is the abstract:

This Article proposes that policy makers should consider establishing their jurisdiction’s crime laboratories as government corporations independent of law enforcement as a means of improving their quality and efficiency. Simply building new buildings or seeking accreditation will not solve the endemic problems that crime laboratories have faced. Rather, we propose that crime laboratories be restructured with a new organizational framework comparable to the Houston Forensic Science Center's (HFSC) status as a local government corporation (LGC), which has proven to be conducive to creating a new institutional culture.

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Rozenshtein on Wicked Crypto

Alan Z. Rozenshtein (University of Minnesota Law School) has posted Wicked Crypto (9 UC Irvine Law Review (Forthcoming)) on SSRN. Here is the abstract:

Encryption safeguards our digital and physical selves. But when encryption impedes law-enforcement investigations, it can undermine public safety. Can we design a system such that our data is secure against malicious actors while simultaneously accessible to the government pursuant to lawful process?

This article, prepared for the UC Irvine Law Review's symposium on gender, equality, and technology, tries to advance the debate over government access to encrypted data. First, it explains that, although government access to encrypted data is publicly framed as primarily a national-security issue, its biggest public-safety effects are on state and local criminal investigations.

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Maillart on Cybercrime and Subjective Territorial Jurisdiction

Jean-Baptiste Maillart (Max Planck Institute for Foreign and International Criminal Law) has posted The Limits of Subjective Territorial Jurisdiction in the Context of Cybercrime (ERA Forum, DOI/10.1007/s12027-018-0527-2, Forthcoming) on SSRN. Here is the abstract:

 

Despite the ubiquitous nature of cyberspace, territorial jurisdiction remains the most fundamental principle of jurisdiction in the cybercrime context. The objective of this paper is, however, to point out the limits of subjective territorial jurisdiction, one of the two main forms of territoriality, over cybercrimes, and thereby call into question the territorial dogma in the digital age. Subjective territorial jurisdiction, which can be claimed and exercised by the state on the territory of which a criminal conduct occurred, is indeed of limited use in the context of cybercrime precisely because it is very difficult to pinpoint the location where the conduct of a cybercrime actually took place. Technical and legal considerations explain such a situation.

Clermont on Standards of Proof

Kevin M. Clermont (Cornell Law School) has posted Staying Faithful to the Standards of Proof (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

Academics have never quite understood the standards of proof or, indeed, much about the theory of proof. Their formulations beget probabilistic musings, which beget all sorts of paradoxes, which in turn beget radical reconceptions and proposals for reform. The theoretical radicals argue that the law needs some basic reconception such as recognizing the aim of legal proof as not at all a search for truth but rather the production of an acceptable result, or that the law needs some shattering reform such as greatly heightening the standard of proof on each part of the case to ensure a more-likely-than-not overall result.

This Article refutes all those baroque re-readings. It shows that the standards of proof, properly understood on the law’s own terms without a probabilistic overlay, work just fine. The law tells fact finders to compare their degree of belief in the alleged fact to their degree of contradictory disbelief. Following that instruction resolves mathematically the paradoxes that traditional probability theory creates for itself. Most surprising, the burden of proof, by which the proponent must prove all the elements and the opponent need disprove only one, does not produce an asymmetry between the parties. The law’s standards of proof need no drastic reconception or reform — because the law knew what it was doing all along.

Smith on Treason, Jury Trials, and the War of 1812

Jennifer Elisa Smith (University of Maryland - Thurgood Marshall Law Library) has posted United States V. Hodges: Treason, Jury Trials, and the War of 1812 on SSRN. Here is the abstract:

 

In August 1814 a number of British soldiers were arrested as stragglers or deserters in the town of Upper Marlboro, Maryland. Upon learning of the soldiers’ absences the British military took local physician, Dr. William Beanes, and two other residents into custody and threatened to burn Upper Marlboro if the British soldiers were not returned. John Hodges, a local attorney, arranged the soldiers’ return to the British military. For this, Hodges was charged with high treason for “adhering to [the] enemies, giving them aid and comfort.” The resulting jury trial was presided over by Justice Gabriel Duvall, a Supreme Court Justice and Prince Georges County native, and highlights how the crime of treason was viewed in early American culture and the role of the jury as deciders of the facts and the law in early American jurisprudence. Contextually, Hodges’ trial took place against the backdrop of the War of 1812 and was informed by the 1807 treason trial of Aaron Burr. What can history tell us about current events?

"How an Unlikely Family History Website Transformed Cold Case Investigations"

From The New York Times:

And no one has been more surprised than the two creators of GEDmatch — Curtis Rogers, 80, a retired businessman who could be easily mistaken for just another low-key Florida grandpa in his white Velcro sneakers, and John Olson, 67, a transportation engineer from Texas. Their tiny outfit, which began as a side project, has unintentionally upended how investigators across the country are trying to solve the coldest of cold cases.

Within three years, the DNA of nearly every American of Northern European descent — the primary users of the site — will be identifiable through cousins in GEDmatch’s database, according to a study published on Thursday in the journal Science.