CrimProf Blog

Brutti & Montolio on Preschool and Later Criminality

Zelda Brutti and Daniel Montolio (Institut d'Economia de Barcelona, Universitat de Barcelona and University of Barcelona - Faculty of Economic Science and Business Studies) have posted Preventing Criminal Minds: Early Education Access and Adult Offending Behavior on SSRN. Here is the abstract:

 

In this paper we estimate the impact of a nationwide public preschool expansion that took place in Spain over the 1990s on criminal behavior later in time. We exploit variation in enrollment rates across Spanish regions and birth-cohorts, and we link education data to a unique administrative crime dataset recording offenses committed in the region of Catalonia over the period 2009-2014. We find that for the average birth cohort, Catalan municipality and year, a 1 percentage point increase in preschool exposure at age 3 yields 1.6% fewer crime actions during youth and young adulthood. We are able to account for region of origin, birth cohort, time and local fixed effects, as well as several region and time-specific controls. Leveraging detailed information on types of crime committed, we propose a categorization of offenses into those likely to have been rationally planned and driven by economic motives, and those in which emotional factors and lack of self-control play a significant role. On average, we find the benefits of preschool to be larger and more robust on crimes belonging to the latter category, suggesting that non-cognitive skills play an important role in explaining the overall effect.

Lynch on Local Variations in Federal Sentencing

Mona Lynch (University of California, Irvine - Department of Criminology, Law and Society) has posted 94 Different Countries? Time, Place, and Variations in Federal Criminal Justice (Berkeley Journal of Criminal Law, Issue 23(3), Fall 2018) on SSRN. Here is the abstract:

 

Frank Zimring and Gordon Hawkins’s 1991 book, The Scale of Imprisonment, was a pioneering intellectual effort to explain what was then just coming into view to social scientists and legal scholars: the massive growth and transformation of American criminal justice, particularly as manifested in what soon came to be called mass incarceration. Zimring and Hawkins endeavored to disentangle multiple forces in play, ranging from formal law, to local and regional legal norms, to a series of broader social and political transformations. In doing so, Zimring and Hawkins set out to disentangle the complex, multi-jurisdictional political and legal structures that govern imprisonment policy in the U.S. In this Article, I apply their insights about locale-based variations in criminal justice operations over time to the case of federal sentencing. Specifically, I empirically examine variations in how the “criminal history” provision of the federal sentencing guidelines is applied as a function of both time and place to demonstrate the limits of formal law in accounting for punishment outcomes. In doing so, I hope to shed additional light on how vast differences in legal practices and outcomes are produced, especially in response to top-down legal change.

Rosenbaum on Crimmigration and Settler Colonialism

Carrie Lynn Rosenbaum (Golden Gate University - School of Law) has posted Crimmigration — Structural Tools of Settler Colonialism (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

The systems of immigration and criminal law come together in many important ways, one of which being their role in instilling difference and undermining inclusion and integration. In this article, I will begin a discussion examining the concept of integration, simplistically described as inclusion into “American” life, not in the more traversed realm of citizenship, but in the context of crimmigration. I posit that when considering the relationship between those who are formally considered integrated versus other, or outsider, which may or may not overlap with immigration status, the accepted concept of integration is misguided at best. Instead, if the concept of integration is framed as an epistemological tool of settler colonialism, the construction of race provides a more fruitful line of inquiry.

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Berry on Individualized Sentencing

William W. Berry (University of Mississippi School of Law) has posted Individualized Sentencing (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences. One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.” The Court’s reasoning in both cases centered on the seriousness of the death penalty. Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence.

In 2012, the Court expanded this Eighth Amendment concept to juvenile life-without-parole sentences in Miller v. Alabama. Specifically, the Court held that juvenile offenders also were unique — in their capacity for rehabilitation and their diminished culpability — such that they too deserved individualized sentencing determinations. The seriousness of the sentence in question, life without parole, also factored into the Court’s decision to extend the individualized sentencing requirement to juvenile life without parole cases.

Felony convictions, however, are serious too.

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Rangaviz on Compelled Decryption under State Constitutions

David Rangaviz (Committee for Public Counsel Services) has posted Compelled Decryption & State Constitutional Protection Against Self-Incrimination (American Criminal Law Review, Vol. 57, No. 1 (2019, Forthcoming)) on SSRN. Here is the abstract:

 

This article engages in a detailed discussion of state constitutional privileges against self-incrimination, and argues that these provisions should be rigorously analyzed when the government seeks to compel a suspect to enter a passcode to an encrypted device. Searches of cell phones are highly intrusive, and the subject of considerable public interest among both lay people and legal scholars. Today, there is much emerging scholarship on the subject of how the Fifth Amendment to the Federal constitution applies to compelled decryption, but none about state constitutional law. This article fully examines how state constitutional protections differ from the Fifth Amendment, and describes how those provisions should be read to provide additional protection against compelled decryption.

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Donelson on Legal Inconsistencies

Raff Donelson (Louisiana State University, Baton Rouge) has posted Legal Inconsistencies (Tulsa Law Review, Forthcoming) on SSRN. Here is the abstract:

 

It is a familiar thought from the rule of law literature and from everyday life that legal norms within a given jurisdiction ought to be consistent. However, little work has been done to explain this demand. This Article develops a theory of legal inconsistencies, both what they are and why legal systems ought to avoid them. In addition to contributing to a theoretical discussion of legal inconsistency, the Article also articulates a remedy under American law for those harmed by inconsistencies. The Article contends that legal inconsistencies violate Due Process.

Meyer on Deific Decrees

Linda Ross Meyer (Quinnipiac University School of Law) has posted Unreasonable Revelations: God Told Me to Kill (Pace Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This article addresses the surprisingly many cases in which defendants claim that God commanded them to kill someone. This problem of “deific decree” murder is raised briefly in the Kadish et al. Criminal Law casebook, and one of the key cases, State v. Crenshaw, 98 Wash.2d 789 (1983), has become a familiar first-year puzzle in the context of insanity doctrine. 

The article proposes a fundamentally different legal approach to deific decree murders. Standard criminal law doctrine (and most law review commentary) treats these cases as candidates for an insanity defense under an exception (or addendum) to the standard M’Naghten test, because God’s command either confused or countermanded the defendant’s “rational” sense of right and wrong, and rendered the defendant irresponsible. I argue that insanity is the wrong frame in which to consider these cases, because it too easily presumes that experiencing revelation is a sign of insanity, when much of the U.S. public believes, to the contrary, that revelation is both real and a better form of truth.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Making Federalism Great Again: How the Trump Administration's Attack on Sanctuary Cities Unintentionally Strengthened Judicial Protection for State Autonomy Ilya Somin George Mason University - Antonin Scalia Law School, Faculty Date Posted: 07 Mar 2019	149
2.	Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against Executing Juveniles From 18 to 21 John H. Blume, Hannah Freedman, Lindsey Vann and Amelia Hritz Cornell Law School, Independent, Justice 360 and Cornell University - Law School Date Posted: 25 Mar 2019	123
3.	Ordinary Causation: A Study in Experimental Statutory Interpretation James Macleod Columbia Law School Date Posted: 09 Apr 2019	114
4.	James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Laws' John Mikhail Georgetown University Law Center Date Posted: 25 Mar 2019	105
5.	Limiting Identity in Criminal Law Mihailis Diamantis University of Iowa - College of Law Date Posted: 27 Mar 2019	91
6.	Judicial Audiences: A Case Study of Justice David Watt's Literary Judgments Elaine Craig Dalhousie University - Schulich School of Law Date Posted: 19 Apr 2019 [new to top ten]	88
7.	Sorting Out White-Collar Crime Miriam H. Baer Brooklyn Law School Date Posted: 27 Mar 2019 [8th last week]	81
8.	Mitigations: The Forgotten Side of the Proportionality Principle Paul H. Robinson University of Pennsylvania Law School Date Posted: 01 Mar 2019 [6th last week]	70
9.	Proportionality Theory in Punishment Philosophy: Fated for the Dustbin of Otiosity? Michael Tonry University of Minnesota - Twin Cities - School of Law Date Posted: 25 Feb 2019 [7th last week]	68
10.	Pornographic Deepfakes — Revenge Porn’s Next Tragic Act – The Case for Federal Criminalization Rebecca Delfino Loyola Law School Los Angeles Date Posted: 18 Mar 2019 [9th last week]	64

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail Aurelie Ouss and Megan T. Stevenson University of Pennsylvania and George Mason University - Antonin Scalia Law School, Faculty Date Posted: 25 Feb 2019	692
2.	Probable Cause Pluralism Andrew Manuel Crespo Harvard Law School Date Posted: 19 Mar 2019 [3rd last week]	155
3.	Theories of Prosecution Jeffrey Bellin William & Mary Law School Date Posted: 19 Mar 2019 [4th last week]	134
4.	Misdemeanors by the Numbers Sandra G. Mayson and Megan T. Stevenson University of Georgia School of Law and George Mason University - Antonin Scalia Law School, Faculty Date Posted: 19 Apr 2019 [new to top ten]	91
5.	Driver's License Suspension in North Carolina Brandon L. Garrett and William Crozier Duke University School of Law and Duke University School of Law Date Posted: 15 Apr 2019 [new to top ten]	83
6.	Recording as Heckling Scott Skinner-Thompson University of Colorado Law School Date Posted: 11 Mar 2019	81
7.	The End is Near For the Per Se Rule in Criminal Sherman Act Cases Robert Connolly Law Office of Robert Connoilly Date Posted: 17 Apr 2019 [new to top ten]	78
8.	The Mismeasure of Terry Stops: Assessing the Psychological and Emotional Harms of Stop and Frisk to Individuals and Communities Susan A. Bandes, Marie Pryor, Erin Kerrison and Phillip Goff DePaul University - College of Law, City University of New York - Center for Policing Equity, University of California, Berkeley and UCLA Department of Psychology Date Posted: 16 Feb 2019 [7th last week]	73
9.	Police Privacy Rachel Moran University of St. Thomas School of Law Date Posted: 12 Mar 2019	67
10.	Clarifying Relative Plausibility: A Rejoinder Ronald J. Allen and Michael S. Pardo Northwestern University Law School and University of Alabama School of Law Date Posted: 21 Feb 2019	60

Mayson & Stevenson on Misdemeanors by the Numbers

Sandra G. Mayson and Megan T. Stevenson (University of Georgia School of Law and George Mason University - Antonin Scalia Law School, Faculty) have posted Misdemeanors by the Numbers (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue. But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research. This Article represents the most substantial empirical analysis of misdemeanor case processing to date. Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing.

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Blinderman & Din on Deterring State-Sponsored Cybercrime

Eric Blinderman and Myra Din (Therium, Inc. and Independent) have posted Hidden by Sovereign Shadows: Improving the Domestic Framework for Deterring State-Sponsored Cybercrime (Vanderbilt Journal of Transnational Law, Vol. 50, 2017) on SSRN. Here is the abstract:

 

This Article analyzes the domestic legal framework applicable to state-sponsored cybercrime. The Article describes several instances where state sovereigns perpetrated cybercrimes in the United States. It then outlines the legal framework that the US government utilizes to hold accountable those who perpetrate such crimes. This Article argues that the current legal framework does not have a deterrence effect on sovereign states engaged in such activity and that prosecutors who seek to apply the current framework against state sovereigns or who misattribute the source of such attacks could negatively impact US foreign policy. To remedy these defects, this Article asserts that relevant US law should apply extraterritorially and that Congress should contemplate passing a statute that abrogates sovereign immunity for state sponsors of cybercrime and subjects such states to civil liability.

Din on Extraterritorial Data Disputes

Myra Din has posted Data Without Borders: Resolving Extraterritorial Data Disputes (Journal of Transnational Law & Policy, Vol. 26, 2017) on SSRN. Here is the abstract:

 

This paper focuses on the recent surge of cross-border data disputes, particularly between the United States and the European Union. It first explains the elaborate privacy and data processing regimes of each region, highlighting key similarities and differences. It then focuses on recent high-profile cases in both commercial and criminal contexts including: Digital Rights Ireland, Maximillian Schrems v. Data Processing Commissioner, and Microsoft Corporation v. United States. The paper focuses on the novel problems that courts now face in reconceptualizing digital extraterritoriality. With a heavier focus on the Second Circuit's recent decision in the Microsoft case, the paper discusses the shortcomings with the Second Circuit's analysis. It then proposes that courts adopt what Supreme Court Associate Justice Stephen Breyer recently coined "active cross-referencing" to compare U.S. case law and EU case law when dealing with cross-border data processing and privacy disputes in order to better understand what extraterritoriality should mean in a borderless digital world.

Sudeall on Integrating the Access to Justice Movement

Lauren Sudeall (Georgia State University College of Law) has posted Integrating the Access to Justice Movement (Fordham Law Review Online, vol. 87, 2019) on SSRN. Here is the abstract:

 

Last fall, advocates of social change came together at the A2J Summit at Fordham University School of Law and discussed how to galvanize a national access to justice movement - who would it include, and what would or should it attempt to achieve? One important preliminary question we tackled was how such a movement would define "justice," and whether it would apply only to the civil justice system. Although the phrase "access to justice" is not exclusively civil in nature, more often than not it is taken to have that connotation. Lost in the interpretation is an opportunity to engage in a broader, more holistic conversation about what justice entails and what is required to gain access to it. Rather than remaining constrained by the typology of "criminal justice reform" or "access to (civil) justice" as two distinct bases for advocacy, we should focus on how individuals navigate a system (with both legal and non-legal components) that controls fundamental aspects of their lives - safety, shelter, family, and their liberty - whether at will or by force. In doing so, we can think more broadly about how individuals relate to the courts, how and when they receive information about the process, and how the way in which the government and the courts manage disputes impacts their lives.

Washington on Arguing with an Algorithm

Anne L. Washington (NYU Steinhardt) has posted How to Argue with an Algorithm: Lessons from the COMPAS ProPublica Debate (Accepted for publication. The Colorado Technology Law Journal. Volume 17 Issue 1 http://ctlj.colorado.edu) on SSRN. Here is the abstract:

The United States optimizes the efficiency of its growing criminal justice system with algorithms however, legal scholars have overlooked how to frame courtroom debates about algorithmic predictions. In State v Loomis, the defense argued that the court’s consideration of risk assessments during sentencing was a violation of due process because the accuracy of the algorithmic prediction could not be verified. The Wisconsin Supreme Court upheld the consideration of predictive risk at sentencing because the assessment was disclosed and the defendant could challenge the prediction by verifying the accuracy of data fed into the algorithm.

Was the court correct about how to argue with an algorithm?

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Wall on Big Data Feeding Big Crime

David S. Wall (University of Leeds, Centre for Criminal Justice Studies) has posted How Big Data Feeds Big Crime (Global History: A Journal of Contemporary World Affairs, 2018) on SSRN. Here is the abstract:

 

Big data helps organisations predict social behavior. It brings with it a range of exciting new tools that offer great potential for identifying new truths about social and physical phenomena that were previously impossible to research on such a large scale. But big data is also a very disruptive phenomenon. It not only weaponises DDoS and Ransomware attacks, but also creates illicit and licit markets for big data which encourage data breaches. The subsequent trade in 'stolen' data leads to their criminal use via spamming and phishing to enable large scale 'downstream' cybercrimes to take place, such as deceptions, frauds and extortion. This short article seeks to map out this new cybersecurity landscape by exploring the criminal opportunities of Big Data Crime and argues that if these 'upstream' cybercrimes can be conceptualised and stopped, then the ongoing 'downstream' cybercrimes will be prevented from taking place on such a large scale.

King et al. on Juvenile Justice and Family Engagement

Shani King, Rachel Barr, Jennifer Woolard, Hannah Ayasse, Alyssa Mikytuck and Terry Harrak (University of Florida, Levin College of Law, Georgetown University, Georgetown University, Georgetown University, Georgetown University and Consultant, Youth Law Center) have posted The Intersection of Juvenile Justice and Early Childhood: How to Maximize Family Engagement (Florida Law Review, Vol. 71, No. 1, 2019) on SSRN. Here is the abstract:

 

This Article reviews the literature describing the cumulative effects of parental incarceration on early childhood. The Article then explores family engagement policy – the systemic inclusion of family in activities that promote children’s development and overall well-being –its impact on child outcomes generally, and specifically in the context of Juvenile Justice law, policy and practice. This is distinct from family involvement, which means that families are included in proceedings but not necessarily on par with decision makers. Put another way, a justice organization that focuses on family engagement listens to families as partners, while a justice organization that focuses on family involvement talks to families about proceedings or plans. This Article also discusses family engagement and visitation for incarcerated youth who are parents themselves, and specifically explores new research on the Just Beginning Program, a structured visitation program designed for young fathers in juvenile or criminal justice facilities that aims to maintain, build and strengthen the relationship between father and child during the period of incarceration. The Article concludes with recommendations for juvenile justice facilities and legal advocates to increase family engagement in juvenile justice facilities.

Abrams et al. on Local Norms and Sentencing Decisions

David Abrams, Roberto Galbiati, Emeric Henry and Arnaud Philippe (University of Pennsylvania Law School, Sciences Po, Sciences Po and University of Toulouse 1 - Toulouse School of Economics (TSE)) have posted When in Rome... on Local Norms and Sentencing Decisions on SSRN. Here is the abstract:

 

In this paper, we show that sentencing norms vary widely even across geographically close units. By examining North Carolina's unique judicial rotation system, we show that judges arriving in a new court gradually converge to local sentencing norms. We document factors that facilitate this convergence and show that sentencing norms are predicted by preferences of the local constituents. We build on these empirical results to analyze theoretically the delegation trade-off faced by a social planner: the judge can learn the local norm, but only at the cost of potential capture.

Davies on Sherlock Holmes: Expert Witness

Ross E. Davies (George Mason University - Antonin Scalia Law School, Faculty) has posted Sherlock Holmes: Expert Witness (Canon Law: Lawyers, Law and the Sherlockian Canon, edited & introduced by William A. Walsh, BSI, and Donny Zaldin, BSI (BSI Press 2018)) on SSRN. Here is the abstract:

 

This paper explains the treatment of expert witnesses in late-Victorian English courtrooms, using a scenario drawn from a Sherlock Holmes story -- “The Adventure of the Dancing Men” -- and a prosecution for murder.

Goldman on FOSTA and Section 230

Eric Goldman (Santa Clara University - School of Law) has posted The Complicated Story of FOSTA and Section 230 (First Amendment Law Review, Vol. 17, page 279, 2019) on SSRN. Here is the abstract:

 

In 2018, Congress passed the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”), designed to attack the online promotion of sex trafficking victims, in part, by reducing Section 230’s scope. FOSTA represents new ground for Congress and the Internet; it peels back Section 230 to create some new legal exposure for online services for the first time in over two decades.

Unfortunately, FOSTA almost certainly will not accomplish Congress’ goals of protecting sex trafficking victims and reducing their victimization. This essay explains why Congress passed FOSTA, how FOSTA modified existing law, why FOSTA has little chance of succeeding, and what FOSTA signals about the future of Section 230 and the Internet.

Murray on Prejudice-Based Rights in Criminal Procedure

Justin Murray has posted Prejudice-Based Rights in Criminal Procedure (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This Article critically examines a cluster of criminal procedure rules that I refer to as prejudice-based rights. I focus, in particular, on outcome-centric prejudice-based rights — rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal defendants’ most important rights fit this description: the right to obtain favorable evidence from the government under Brady v. Maryland, and the right to effective assistance of counsel. Since prejudice is an element of these rights, no constitutional violation occurs when the government suppresses Brady evidence, or defense counsel furnishes ineffective assistance, unless there is a reasonable probability that the outcome was prejudiced as a result.

Outcome-centric, right-restricting prejudice rules serve understandable functions: most notably, they enable courts to preserve the finality of criminal judgments by rationing appellate and habeas relief. To the extent this is their aim, however, such rules are profoundly overbroad.

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