CrimProf Blog

Roberts on Convictions as Guilt

Anna Roberts (Seattle University School of Law) has posted Convictions As Guilt (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

 

A curious tension exists in scholarly discourse about the criminal justice system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, which presents carrots and sticks to innocent and guilty alike, and the subordination of the defense, symbolized by resource disparities that prevent even narratives of innocence from getting a fair hearing. On the other hand, in a variety of contexts, scholars discuss those with criminal convictions in a way that appears to assume crime commission. This assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding race- and class-based stereotypes of criminality. From careful examination of this phenomenon and its possible explanations, reform proposals emerge.

Hessick & Kennedy on Criminal Clear Statement Rules

Carissa Byrne Hessick and Joseph Edward Kennedy (University of North Carolina School of Law and University of North Carolina) have posted Criminal Clear Statement Rules (Washington University Law Review, Vol. 97, 2019, Forthcoming) on SSRN. Here is the abstract:

 

There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive. Legislatures write these laws because there are significant political incentives for them to be “tough on crime” and few incentives for them to write carefully crafted laws. The problems of over-criminalization thus seems to be both a predictable yet intractable consequence of the incentives that legislatures face. But this Article offers a novel solution: Judges should develop new clear statement rules to interpret criminal statutes. The Supreme Court has created clear statement rules to protect important values, such as federalism and the separation of powers. Legislatures can overcome those values, but only if they do so affirmatively and unambiguously. Just as existing clear statement rules protect important structural values, new criminal clear statement rules would protect important criminal justice values. Unless statutes clearly state that they reject those values, clear statement rules will result in statutory interpretations that better protect the interests of criminal defendants. The result will be clearer and more thoughtful criminal laws — both because legislatures will write better statutes and because judges will construe poorly drafted statutes in a more narrow and predictable manner. In addition to making the case for criminal clear statement rules as a general interpretive tool, this Article proposes two specific clear statement rules. One rule would create a default presumption of a knowing mental state requirement for material elements. The other would impose a substantial harm requirement. Both would markedly improve the state of modern criminal law.

Fehr on Instrumental Rationality and General Deterrence

Colton Fehr (University of Alberta, Faculty of Law) has posted Instrumental Rationality and General Deterrence (Alberta Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The Supreme Court of Canada concluded in R v Nur that the use of general deterrence in sentencing is not ‘rationally connected’ to its objective of lowering crime levels. Although this conclusion was drawn in the section 1 context, its logic applies with equal force at the section 7 stage of analysis. As a law bearing no rational connection to its purpose is arbitrary, I contend that judicial reliance on general deterrence in sentencing runs afoul of section 7 of the Charter. This conclusion is significant not only because it would forestall judicial use of general deterrence, but also for what it reveals about the relationship between the instrumental rationality principles. Commentators maintain that the Court’s ‘individualistic’ approach to instrumental rationality resulted in the arbitrariness principle becoming subsumed by overbreadth. Yet, challenging the general deterrence provisions with overbreadth is not possible given the discretion given to judges to avoid its unnecessary application. The fact that a law can be arbitrary but not overbroad provides support for the Court’s insistence upon keeping the principles distinct. It also, however, requires that the Court adjust its position with respect to its method for proving arbitrariness.

Skorvanek et al. on Sewage Monitoring

Ivan Škorvánek, Bert-Jaap Koops and Tjerk Timan (Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT), Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) and Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)) have posted Surveillance, Criminal Procedure, and Regulatory Connection: The Case of Sewage Monitoring on SSRN. Here is the abstract:

 

This paper analyses the implications of a new form of surveillance—sewage monitoring—for criminal procedural law. Current law has not been written with a view to covering novel, technology-enabled forms of covert data acquisition, posing a challenge of regulatory connection. To what extent are new surveillance methods, such as sewage monitoring to combat drugs production, covered by existing legal frameworks? This question is answered through analysing the shifting nature of criminal investigation, reflecting on how to interpret laws not written for new technologies, and assessing checks and balances needed when law enforcement employ sewage monitoring in criminal investigation. The analysis is illustrated with reference to the legal systems of Germany, Poland, and the Netherlands, using legal doctrinal research. The main findings are 1) that sewage monitoring is not particularly intrusive as such, but constitutes a new form of investigation that legally differs significantly from traditional surveillance powers, 2) that comparable methods do not provide unequivocal analogies that could serve to find a legal basis, 3) that functionality of evidence collection poses legal and procedural challenges, which may have implications for the covertness of the method, and 4) that even if only used as a diagnostic tool, some form of transparency and oversight will be needed to legitimate the non-negligible potential interference with fundamental rights and to enable those subjected to sewage monitoring to contest the usage in court.

Westen on Duress, Justifications, and Excuses

Peter K. Westen (University of Michigan Law School) has posted Does Duress Justify or Excuse? The Significance of Larry Alexander's Ambivalence (Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (H. Hurd and M. Moore, eds., 2019)) on SSRN. Here is the abstract:

 

A majority of commentators regard duress as an excuse rather than a justification. Yet that is problematic on its face. Actions under duress share no family resemblance with complete excuses like insanity, involuntary intoxication, infancy, and mistake - all of which involve subjective cognitive and/or volitional deficits that are distinctive to individuals, all of which operate by negating society’s reactive emotions of resentment for conduct that is condemnable, and all of which provide complete excuses, regardless of how horrific an actor’s conduct. Actions under duress resemble are complete justifications like the lesser-evils defense and self-defense - all of which (i) involve competent moral agents who, while under the pressure of hard choices, intentionally and non-mistakenly harm others in order to benefit themselves or their own, (ii) obtain only when offenses are objectively proportional in some way to the harms with which actors are threatened, and (iii) are universalizable to all persons facing such choices. Why, then, do commentators characterize duress as an excuse? Many do so, I believe, because they assume that threats that are natural in origin provide the baseline for determining the harms that actors may inflict on innocent and non-threatening persons. Because they take natural threats as the baseline for justification in such cases, and because MPC section 2.09 provides a defense for coercive threats that go beyond that baseline, commentators feel they must regard section 2.09 as an excuse. I have argued that commentators are mistaken. A coercive threat of an unlawful harm is a graver evil for a threatened person than an otherwise identical evil that is natural in origin; and the offense that a person is coerced into inflicting may not be as grave an evil by him as the evil of his coercer. The combination justifies coerced actors in committing offenses that would be unjustified if the threatened and inflicted harms differed in their respective origins.

Barabas on Ethical AI in Criminal Law

Chelsea Barabas (MIT Media Lab) has posted Beyond Bias: Re-Imagining the Terms of ‘Ethical AI’ in Criminal Law on SSRN. Here is the abstract:

 

Data-driven decision-making regimes, often branded as “artificial intelligence,” are rapidly proliferating across the US criminal justice system as a means of predicting and managing the risk of crime and addressing accusations of discriminatory practices. These data regimes have come under increased scrutiny, as critics point out the myriad ways that they can reproduce or even amplify pre-existing biases in the criminal justice system. This essay examines contemporary debates regarding the use of “artificial intelligence” as a vehicle for criminal justice reform, by closely examining two general approaches to, what has been widely branded as, “algorithmic fairness” in criminal law: 1) the development of formal fairness criteria and accuracy measures that illustrate the trade-offs of different algorithmic interventions and 2) the development of “best practices” and managerialist standards for maintaining a baseline of accuracy, transparency and validity in these systems. The essay argues that attempts to render AI-branded tools more accurate by addressing narrow notions of “bias,” miss the deeper methodological and epistemological issues regarding the fairness of these tools. The key question is whether predictive tools reflect and reinforce punitive practices that drive disparate outcomes, and how data regimes interact with the penal ideology to naturalize these practices. The article concludes by calling for an abolitionist understanding of the role and function of the carceral state, in order to fundamentally reformulate the questions we ask, the way we characterize existing data, and how we identify and fill gaps in existing data regimes of the carceral state.

Sommers & Bohns on Voluntary Consent and the Psychology of Compliance

Roseanna Sommers and Vanessa K. Bohns (University of Chicago - Law School and Cornell University) have posted The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance (Yale Law Journal, Vol. 128, No. 7, 2019) on SSRN. Here is the abstract:

 

Consent-based searches are by far the most ubiquitous form of search undertaken by police. A key legal inquiry in these cases is whether consent was granted voluntarily. This Essay suggests that fact finders’ assessments of voluntariness are likely to be impaired by a systematic bias in social perception. Fact finders are likely to underappreciate the degree to which suspects feel pressure to comply with police officers’ requests to perform searches.

In two preregistered laboratory studies, we approached a total of 209 participants (“Experi- encers”) with a highly intrusive request: to unlock their password-protected smartphones and hand them over to an experimenter to search through while they waited in another room. A sepa- rate 194 participants (“Forecasters”) were brought into the lab and asked whether a reasonable person would agree to the same request if hypothetically approached by the same researcher. Both groups then reported how free they felt, or would feel, to refuse the request.

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Scoular et al. on Regulating and Policing Sex Work in the Digital Age

Jane Scoular, Jane Pitcher, Teela Sanders, Stewart Cunningham and Rosie Campbell (University of Strathclyde - School of Law, Unaffiliated Authors, University of Leeds, University of Strathclyde and affiliation not provided to SSRN) have posted Beyond the Gaze and Well Beyond Wolfenden: The Practices and Rationalities of Regulating and Policing Sex Work in the Digital Age (Journal of Law and Society, Vol. 46, Issue 2, pp. 211-239, 2019) on SSRN. Here is the abstract:

 

Drawing on the largest study of the United Kingdom online market in sexual labour to date, this article examines the legal and regulatory consequences as aspects of sex work increasingly take place within an online environment. Our research shows that while governmental policy has not kept abreast of these changes, the application of current laws (which have, since the 1950s, focused on public nuisance and, more recently, trafficking and modern slavery) are pernicious to sex workers and unsuited to recognizing and responding to the abuses and exploitation in online markets in sexual labour. These injustices are likely to be exacerbated if policies and policing do not better align with the realities of these markets in the twenty‐first century. This demands a more nuanced regulatory approach which recognizes that people may engage in sex work of their own volition, but which also addresses conditions of labour and criminal exploitation.

Funk on Bail

Kellen Funk (Columbia University - Law School) has posted The Present Crisis in American Bail (128 Yale Law Journal Forum 1098, 2019) on SSRN. Here is the abstract:

 

More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) postconviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these precedents while also taking account of the troubled history of American bail, particularly during the Reconstruction Era from which the right to sue state officials in federal court for violations of constitutional rights emerged.

Levine et al. on Crowdsourcing Plea Bargains

Kay Levine, Ronald F. Wright, Nancy J. King and Marc L. Miller (Emory University School of Law, Wake Forest University - School of Law, Vanderbilt University - Law School and University of Arizona College of Law) has posted Sharkfests and Databases: Crowdsourcing Plea Bargains (6 Texas A&M Law Review 653 (Forthcoming 2019)) on SSRN. Here is the abstract:

 

The stock image of a plea negotiation in a criminal case depicts two lawyers in frayed business suits, meeting one-on-one in a dim corner of a courtroom lobby. The defendant is somewhere nearby, ready to receive information about the prosecutor’s offer and to discuss counteroffers with his attorney and perhaps with his family. The victim or arresting officer may be available by phone, although neither has the power to veto a deal the prosecutor otherwise thinks is reasonable. In this depiction of plea bargaining, the defense attorney and the defendant form one unit, allied against another unit—comprised of the prosecutor, victim, and police officer—while remaining independent of other defense units in terms of information, interests, and goals. Each defendant’s case requires and receives individualized attention, and each case is bargained on its own terms.

In this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations. In particular, we examine the effects of crowdsourcing tactics in the negotiation setting. Could the effects of the group negotiation setting be reproduced, institutionalized, and furthered by the creation of a database about plea negotiations and case outcomes? The individual attorneys who negotiate guilty pleas could likewise benefit from access to data beyond their individual caseloads. Crowdsourced plea-bargaining data can help attorneys to connect the dots between cases and escape the illusion that they negotiate alone.

Yesterday's criminal law/procedure cert grant in cross-border shooting case

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

• Hernandez v. Mesa: Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

Opinion holding probable cause defeats First Amendment retaliatory arrest claim

Chief Justice Roberts delivered the opinion of the Court in Nieves v. Bartlett. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed an opinion concurring in the judgment in part and dissenting in part. Justice Sotomayor dissented.

Baker on The Mental Element in Hong Kong Law

Dennis J Baker (University of Cambridge) has posted The Mental Element in Hong Kong Law on SSRN. Here is the abstract:

 

This is a paper simply giving a full account of the mental element in Hong Kong criminal law. It is likely to be useful to judges and students as there are no current textbooks of criminal law in Hong Kong.

Manikis on The Emergence of Victims' Movements

Marie Manikis (McGill University - Faculty of Law) has posted Contrasting the Emergence of the Victims’ Movements in the United States and England and Wales (Societies 2019, 9, 35; doi:10.3390/soc9020035) on SSRN. Here is the abstract:

 

Over the years, the role of victims in the criminal process has considerably evolved in common law jurisdictions, particularly in the United States and England and Wales. These notable developments have varied greatly between these two jurisdictions. These differences are in great part attributed to the different forces and rationales behind the emergence of the early victims’ movements in these respective jurisdictions. Indeed, the movements in the United States and England and Wales adopted different philosophies, strategies, and members came from different backgrounds, which can account for the differences in policies. This article engages in a process of comparative distancing between the forces that drove the movements, as well as the context under which they operated in order to understand the different policies, legal responses and debates that relate to the role of victims of crime in the two selected jurisdictions.

Sekhon on Police and the Limit of Law

Nirej Sekhon (Georgia State University College of Law) has posted Police and the Limit of Law (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:

 

For more than fifty years, the problems endemic to municipal policing in the United States - brutality, racial discrimination, corruption, and opacity - have remained remarkably consistent. This notwithstanding the advent of modern Constitutional Criminal Procedure and countless judicial opinions applying it to the police. The municipal police can evade criminal procedure's legality-based paradigm through formal and informal means. That paradigm presupposes that the police's primary role is fighting crime, the zealous pursuit of which leads them to violate civil rights. The history and sociology of American policing however, suggests that courts and law scholars have misconceived the municipal police. They are not, in the main, fighters of crime. They are guarantors of a social order that benefits dominant groups. This Article advances an original descriptive account of the municipal police: they are "street sovereigns" whose power derives from law, but cannot be contained by it. Police have the power to derogate from law as necessity requires and it is the police themselves who usually have final say as to what constitutes a necessity. Police use of force and plainclothes tactics illustrate the descriptive theory. The theory suggests that law cannot restrain police in the way that American courts and commentators typically think it can. But law nonetheless remains important as an enabler of popular and institutional resistance to police abuses.

Currie & Ellyson on Extradition and Trial Delays

Robert J. Currie and Laura Ellyson (Dalhousie University - Schulich School of Law and affiliation not provided to SSRN) have posted Extradition and Trial Delays: Recent Developments (and Lessons?) from Canada ((2019) 2(3) Catolica Law Review 77) on SSRN. Here is the abstract:

 

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles to be applied to cases where extradition is involved in claims of trial delay. These range from the prosecution’s obligation to pursue timely trial in a diligent manner, to the extent to which extradition should simply be treated as procedurally neutral, to the attribution of delays when an accused has deliberately left the country to avoid prosecution. This body of case law is surveyed and analyzed in this article, as a means of providing an illustrative example of state practice regarding this right. The authors conclude that while Canadian law on this question is not entirely coherent internally, it generally complies with international standards.

Humbach on Neuroscience, Justice and the "Mental Causation" Fallacy

John A. Humbach (Pace University School of Law) has posted Neuroscience, Justice and the 'Mental Causation' Fallacy (11 Wash. U. Jur. Rev. 191 (2019)) on SSRN. Here is the abstract:

 

This article takes direct aim at a foundational assumption of modern criminal justice, namely, that there is such a thing as “mental causation,” viz. that criminal acts are caused or influenced by mental states such as intentions or volitions. The pre-scientific supposition that mental states can cause criminal acts is the primary basis for holding that people “deserve” to suffer punishment and, as such, is the most serious barrier to acceptance of neuroscience in criminal justice reform. However, this key justification for modern criminal justice practices is premised on a logical fallacy and is ripe for review.

A growing body of neuroscience evidence shows that human behavior, like that of all other animals with brains, is produced by observable physiological activity in the brain and central nervous system — all in accordance with ordinary physical laws. Beyond these ordinary physiological interactions and processes, no hypothesis of mental causation is required to causally explain behavior. Everything a person does is the result of chains of causation originating outside the person’s body and far back in time.

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Brown & Gordon on Older Victims

Kevin Brown and Faith Gordon (Queen's University Belfast and University of Westminster) have posted Older Victims of Crime: Vulnerability, Resilience and Access to Procedural Justice ((2019) International Review of Victimology 25(2): 201-221) on SSRN. Here is the abstract:

 

This article provides the first comprehensive examination of the phenomenon of unequal access to procedural justice for older victims of crime. It analyses quantitative and qualitative data exploring the interactions of older people with the criminal justice system of Northern Ireland. It identifies that older victims of crime are less likely to have a successful crime outcome (known as ‘detection’ or ‘clear-up’ in other jurisdictions) to their case when compared to other adults. The results provide evidence of a system failing to adequately take into account additional vulnerabilities that disproportionately impact on older victims’ ability to engage with the justice process. There is an analysis of the relationships between vulnerability, resilience and access to justice. The current conceptual understanding of vulnerability as applied to older people within the justice system is challenged. The findings are relevant for researchers and policy-makers in the United Kingdom, Ireland and further afield concerned with the treatment of older and vulnerable victims by the justice system.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Unreasonable Revelations: God Told Me to Kill Linda Ross Meyer Quinnipiac University School of Law Date Posted: 22 Apr 2019	211
2.	What is a War Crime? Oona A. Hathaway, Paul Strauch, Beatrice Walton and Zoe Weinberg Yale University - Law School, Yale University - Law School, International Court of Justice and Yale University - Law School Date Posted: 08 May 2019	157
3.	Declining Corporate Prosecutions Brandon L. Garrett Duke University School of Law Date Posted: 25 Apr 2019	154
4.	The Complicated Story of FOSTA and Section 230 Eric Goldman Santa Clara University - School of Law Date Posted: 17 Apr 2019 [5th last week]	153
5.	Ordinary Causation: A Study in Experimental Statutory Interpretation James Macleod Columbia Law School Date Posted: 09 Apr 2019 [6th last week]	129
6.	Inventing the War Crime: An Internal Theory Jessica Laird and John Fabian Witt Yale University, Law School, Students and Yale University - Law School Date Posted: 21 Apr 2019 [7th last week]	110
7.	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 [8th last week]	109
8.	Limiting Identity in Criminal Law Mihailis Diamantis University of Iowa - College of Law Date Posted: 27 Mar 2019 [9th last week]	99
9.	Sorting Out White-Collar Crime Miriam H. Baer Brooklyn Law School Date Posted: 27 Mar 2019 [10th last week]	99
10.	Weaponized Racial Fear Shawn Fields Campbell University - Norman Adrian Wiggins School of Law Date Posted: 09 Apr 2019 [new to top ten]	67

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Under the Hood: Brendan Dassey, Language Impairments, and Judicial Ignorance Michele LaVigne and Sally Miles University of Wisconsin Law School and affiliation not provided to SSRN Date Posted: 03 May 2019 [new to top ten]	318
2.	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 [3rd last week]	149
3.	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 [4th last week]	129
4.	How to Argue with an Algorithm: Lessons from the COMPAS ProPublica Debate Anne L. Washington NYU Steinhardt Date Posted: 19 Apr 2019 [6th last week]	109
5.	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	107
6.	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 [7th last week]	99
7.	Weaponized Racial Fear Shawn Fields Campbell University - Norman Adrian Wiggins School of Law Date Posted: 09 Apr 2019 [9th last week]	67
8.	Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David C. Baldus, George G. Woodworth and Richard Newell Michigan State University College of Law, Columbia Law School, Law Office of Michael Laurence, University of Iowa - College of Law, University of Iowa - Department of Statistics & Actuarial Science and University of Iowa - College of Law Date Posted: 14 Apr 2019 [10th last week]	66
9.	Beyond #MeToo Deborah Tuerkheimer Northwestern University - Pritzker School of Law Date Posted: 16 Apr 2019 [new to top 10]	65
10.	Incorporating Collateral Consequences into Criminal Procedure Paul T. Crane University of Richmond School of Law Date Posted: 07 May 2019 [new to top ten]	64