CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	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 [2nd last week]	186
2.	Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States Amy J. Cohen Ohio State University (OSU) - Michael E. Moritz College of Law Date Posted: 17 May 2019 [6th last week]	80
3.	The Opposite of Punishment: Imagining a Path to Public Redemption Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 19 Jun 2019 [new to top ten]	74
4.	Reckless Juveniles Kimberly Thomas University of Michigan Law School Date Posted: 03 May 2019 [7th last week]	56
5.	Neuroscience, Justice and the 'Mental Causation' Fallacy John A. Humbach Pace University School of Law Date Posted: 17 May 2019 [8th last week]	55
6.	Liability of Sister Companies and Subsidiaries in European Competition Law Christian Kersting Heinrich Heine University Düsseldorf - Faculty of Law Date Posted: 03 Jun 2019 [9th last week]	50
7.	Criminal Clear Statement Rules Carissa Byrne Hessick and Joseph Edward Kennedy University of North Carolina School of Law and University of North Carolina Date Posted: 24 May 2019 [new to top ten]	50
8.	Attempted Justice: Misunderstanding and Bias in Psychological Constructions of Criminal Attempt Avani Mehta Sood University of California, Berkeley - School of Law Date Posted: 03 May 2019 [10th last week]	49
9.	IQ, Culpability, and the Criminal Law’s Gray Area: Why the Rationale for Reducing the Culpability of Juveniles and Intellectually Disabled Adults Should Apply to Low-IQ Adults Adam Lamparello Independent Date Posted: 30 May 2019 [new to top ten]	48
10.	Democracy, Bureaucracy and Criminal Justice Reform Lauren M. Ouziel Temple University - James E. Beasley School of Law Date Posted: 06 Jun 2019 [new to top ten]	38

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	575
2.	The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance Roseanna Sommers and Vanessa K. Bohns University of Chicago - Law School and Cornell University Date Posted: 23 May 2019	513
3.	Beyond Bias: Re-Imagining the Terms of ‘Ethical AI’ in Criminal Law Chelsea Barabas MIT Media Lab Date Posted: 23 May 2019	181
4.	When Plea Bargaining Became Normal William Ortman Wayne State University School of Law Date Posted: 29 May 2019	156
5.	Plea-Bargaining: Socio-Legal Impacts on the Criminal Justice System of Bangladesh Md. Pizuar Hossain and Tureen Afroz East West University and East West University Date Posted: 04 Jun 2019 [8th last week]	113
6.	'Spit and Acquit': Prosecutors as Surveillance Entrepreneurs Andrea L. Roth University of California, Berkeley - School of Law Date Posted: 29 Apr 2019 [10th last week]	104
7.	Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States Amy J. Cohen Ohio State University (OSU) - Michael E. Moritz College of Law Date Posted: 17 May 2019 [new to top ten]	80
8.	Incorporating Collateral Consequences into Criminal Procedure Paul T. Crane University of Richmond School of Law Date Posted: 07 May 2019 [new to top ten]	77
9.	The Opposite of Punishment: Imagining a Path to Public Redemption Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 19 Jun 2019 [new to top ten]	68
10.	Big Data Prosecution and Brady Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 07 Jun 2019 [new to top ten]	67

Aviram on Progressive Punitivism

Hadar Aviram (University of California, Hastings College of the Law) has posted Progressive Punitivism: Notes on the Use of Punitive Social Control to Advance Social Justice Ends on SSRN. Here is the abstract:

 

This essay examines the emergence of an academic and popular discourse that advocates turning the cannons of the punitive machine against the powerful. I identify this discourse as “progressive punitivism”: a logic that wields the classic weapons of punitive law — shaming, stigmatization, harsh punishment, and denial of rehabilitation — in the service of promoting social equality. This logic has permeated much of the political conversation on the progressive left in the United States, and while it has gained some hold in academic discourse, particularly in the legal field, its core lies in the leftist social media arena, where it has enjoyed considerable popular appeal in the last few years. Progressive ire before, and especially after, the election of Donald Trump to the presidency, has flared around issues such as police accountability for use of excessive force, especially against people of color; the proliferation of sexual harassment, assault, and abuse, by the powerful, with too little accountability; and the too-lenient legal response to expressions of racism, xenophobia, corporate/political malfeasance, and other forms of discrimination, social hatred and exclusion.

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Craig on Sexual Assault and Canada's Military

Elaine Craig (Dalhousie University - Schulich School of Law) has posted An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault (Forthcoming Dalhousie Law Journal 43:1 Spring 2020) on SSRN. Here is the abstract:

 

Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only 1 soldier has been convicted of sexually assaulting a female member of the Canadian Armed Forces by Canada’s military legal system.

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Buller on Noncorroboration Instructions in Rape

Tyler J. Buller (Iowa Department of Justice) has posted Fighting Rape Culture With Noncorroboration Instructions (Tulsa Law Review, Vol. 53, No. 1, 2017) on SSRN. Here is the abstract:

 

For centuries, the criminal justice system has erected barriers to the successful prosecution of sexual violence. Today, many of the formal obstacles to prosecution have been abolished, but their effects linger. Rape myths weigh heavily on jurors, often manifesting in a rape culture that is unwilling to convict defendants of sexual violence unless victim testimony is corroborated by independent physical evidence. Yet empirical social science overwhelmingly finds that most sexual assaults do not involve eyewitnesses or result in corroborating physical injuries. One way to combat mistaken stereotypes about sexual abuse is through “noncorroboration instructions” that explain to jurors that they can return a guilty verdict if they believe the victim’s testimony beyond a reasonable doubt, even without corroborating evidence.

Arlyck on Civil Forfeiture

Kevin Arlyck (Georgetown University Law Center) has posted The Founders' Forfeiture (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Civil forfeiture is, in a word, controversial. Critics allege that law enforcement authorities use forfeiture as means of appropriating valuable assets from often-innocent victims free of the constraints of criminal process. Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture. Relying on a perceived historical tradition of unfettered government power to seize and keep private property in response to legal violations, the Court has consistently rejected claims to constitutional protections. Faced with an unfriendly historical tradition, forfeiture’s critics have tried to limit history’s relevance by asserting that forfeiture was traditionally used for limited purposes, but such arguments have fallen on deaf ears.

As this Article explains, forfeiture’s critics are right, but for the wrong reasons. Based on original research into more than 500 unpublished federal forfeiture cases from 1789 to 1807, this Article shows — for the first time — that forfeiture in the Founding era was significantly constrained. But not by judges.

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Today's criminal law/procedure cert grants

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

• Kelly v. United States: Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.
• Shular v. United States: Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the act.

Larkin on A New Law Enforcement Agenda for a New Attorney General

Paul J. Larkin, Jr. (The Heritage Foundation) has posted Essay: A New Law Enforcement Agenda for a New Attorney General (Georgetown Journal of Law & Public Policy, Vol. 17, No. 1, 2019) on SSRN. Here is the abstract:

 

President Donald Trump’s decision to dismiss U.S. Attorney General Jeff Sessions generated considerable legal and political controversy. The foci of debate have been whether the President could lawfully appoint Sessions’s chief of staff, Matthew Whitaker, as Acting Attorney General and whether Whitaker was likely to dismiss Special Counsel Robert Mueller, the attorney appointed to investigate Russia’s involvement in the 2016 presidential election. Lost in the wrangling over those matters is the issue whether the next attorney general should re-examine the direction of federal law enforcement. No attorney general has undertaken a comprehensive review of that enterprise for the last fifty years, and members of Congress, scholars, and practitioners have dis-agreed over the proper course. It is important for the next attorney general to consider taking up that issue even if all he does is start the conversation. The purpose of this essay is to facilitate that discussion by identifying three issues that the new attorney general should ask the Justice Department, the bench, the bar, the academy, and the public to ponder: (1) On what crimes should federal law enforcement focus? (2) Which federal law enforcement agency should be responsible for each category of those offenses? (3) How should we measure a federal law enforcement agency’s success?

Ramseyer on Private Police

J. Mark Ramseyer (Harvard Law School) has posted Privatizing Police: Japanese Police, the Korean Massacre, and Private Security Firms (Forthcoming, The Cambridge Handbook on Privatization, Avihay Dorfman & Alon Harel, eds.) on SSRN. Here is the abstract:

 

Public security is often a non-excludable public good that involves economies of scale. For these obvious reasons, modern democracies provide their residents with basic security services out of the public fisc.

Yet the capacity to protect overlaps with the capacity to prey. As a result, regimes in dysfunctional societies sometimes use the public security apparatus to extract benefits. Sometimes the security services use their resources to extract benefits for themselves.

Public security is also a normal good: the level of security that people demand tends to increase with income. Hence, wealthier citizens often choose to purchase additional levels of security on the market. In democracies, they do this to supplement the security provided through the public police. In dysfunctional societies, they do this in part to protect themselves from the public police.

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Henshaw et al. on Parole Compliance and Therapeutic Jurisprudence

Max Henshaw, Lorana Bartels and Anthony Hopkins (HWL Ebsworth Lawyers, Australian National University (ANU) - ANU Centre for Social Research and Methods and University of Canberra – Faculty of Law) have posted Set Up to Fail? Examining Australia’s Approach to Parole Compliance Through a Therapeutic Jurisprudence Lens (University of Western Australia Law Review, Vol. 45, 2019) on SSRN. Here is the abstract:

 

With growing prisoner and parole numbers, Australia is demonstrably failing to reduce recidivism and facilitate desistance from crime. This paper examines Australia’s parole compliance regime through the lens of therapeutic jurisprudence (‘TJ’), which we argue provides a valuable perspective for understanding how these laws can operate to break or further entrench the cycle of recidivism. Our analysis indicates that these laws are not currently ‘TJ-friendly’, as parole boards have little engagement with offenders, breaches of parole conditions are often subject to disproportionate responses and there is no legislative obligation for jurisdictions to integrate support services for parolees.

Corwin & Johnson on Incarceration and Lifetime Wages

Theodore S. Corwin III and Daniel K. N. Johnson (Colorado College - Department of Economics and Business and Colorado College - Department of Economics and Business) have posted Plus a Life Sentence? Incarceration’s Effects on Expected Lifetime Wage Growth on SSRN. Here is the abstract:

 

The United States incarcerates citizens at rates higher than those of any other developed nation, with impacts on not only government budgets but economic growth rates. Using the National Longitudinal Survey of Youth for 1997, we model the effects of incarceration on wage growth rates using inverse probability weighted regression adjusted (IPWRA) propensity score matching to recognize the selection bias among the members of the sample who serve prison terms. Results show that incarceration reduces average lifetime income growth by one-third even for a relatively short earning period, with that depth depending on length of sentence, employment history, and education level in some surprising ways.

Hallevy on Criminal Liability of AI Systems

Prof. Gabriel Hallevy (Ono Academic College, Faculty of Law) has posted The Basic Models of Criminal Liability of AI Systems and Outer Circles on SSRN. Here is the abstract:

 

The way humans cope with breaches of legal order is through criminal law operated by the criminal justice system. Accordingly, human societies define criminal offenses and operate social mechanisms to apply them. This is how criminal law works. Originally, this way has been designed by humans and for humans. However, as technology has developed, criminal offenses are committed not only by humans. The major development in this issue has occurred in the 17th century. In the 21st century criminal law is required to supply adequate solutions for commission of criminal offenses through artificial intelligent (AI) systems.

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Lain on The Mentally Ill and the Death Penalty

Corinna Lain (University of Richmond - School of Law) has posted Madison and the Mentally Ill: The Death Penalty for the Weak, Not the Worst (31 Regent University Law Review 209 (2019)) on SSRN. Here is the abstract:

 

Time and again, we are told that the death penalty is for the worst of the worst offenders, so how is it that the severely mentally ill end up in the snare of the capital justice system in the first place? This essay — a transcribed (and slightly edited) version of a keynote speech given at Regent University’s 2018 law review symposium on mental health and the law — endeavors to answer that question. The journey starts with deinstitutionalization of the severely mentally ill in the 1970s, and reinstitutionalization through the criminal justice system thereafter. It then turns to the capital justice process, which not only fails to screen out those with severe mental illness, but is filled with hazards that make this cohort of offenders even more likely to be convicted and sentenced to death. Next it turns to death row, and the conditions of solitary confinement in which the sick get sicker, and languish that way until it is time to die. Finally, the discussion turns to the doctrinal failsafe of competency to be executed, and explains why so many with severe mental illness fall through the cracks. The reality of the death penalty is that it is not for the worst of the worst. It is for the weak among the worst — the most vulnerable offenders in a variety of ways, and executing those with severe mental illness is just a testament to the truth of that claim.

Robinson & Sarahne on Public Redemption

Paul H. Robinson and Muhammad Sarahne (University of Pennsylvania Law School and University of Pennsylvania) have posted The Opposite of Punishment: Imagining a Path to Public Redemption on SSRN. Here is the abstract:

 

The criminal justice system traditionally performs its public functions – condemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms – through the use of negative examples: convicting and punishing violators. One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness. An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and an exemption from all collateral consequences of conviction.

This essay explores how and why such a system of public redemption might be constructed, the benefits it might provide to offenders, victims, and society, and the political complications that creation of such a system might encounter.

Barry & Malkani on Slavery and the Death Penalty

Kevin M. Barry and Bharat Malkani (Quinnipiac University - School of Law and University of Birmingham) have posted The Death Penalty's Darkside: A Response to Phyllis Goldfarb's Matters of Strata: Race, Gender, and Class Structures in Capital Cases (74 Washington and Lee Law Review Online 1) on SSRN. Here is the abstract:

 

In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This relationship helps to explain why, over the past four decades, the thirteen states that comprised the former Confederacy have been responsible for nearly all of this nation’s executions. Although the U.S. Supreme Court has repeatedly failed to address the death penalty’s roots in slavery, several state court judges have risen to the occasion, calling out the impermissible taint of bias that colors the death penalty. This Response suggests how the death penalty’s connection to slavery should inform death penalty jurisprudence and concludes with a discussion of the future of abolition, given a Supreme Court in flux.

Case upholding blood test on unconscious driver

Justice Alito announced the judgment of the Court in Mitchell v. Wisconsin and delivered an opinion joined by the Chief Justice and Justices Breyer and Kavanaugh. Justice Thomas concurred in the judgment. Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg and Kagan. Justice Gorsuch also filed a dissenting opinion.

Sangero on Safety in Post-Conviction Proceedings

Boaz Sangero (College of Law and Business - Ramat Gan Law School) has posted Safety in Post-Conviction Proceedings (John Marshall Law Review, Vol. 51, 2019, p. 773) on SSRN. Here is the abstract:

 

It is extremely difficult to correct an error after conviction. Given the Hidden Accidents Principle in criminal law, it is very hard to uncover mistakes and even harder to prove them. Time is one of the greatest enemies of reconstructing the truth. Evidence gets lost, potential witnesses forget, move away, or die. The legal rules, including the finality of verdicts rule, hinder the rectification of miscarriages of justice. Another factor is that once the indictment has been made, the police usually close their investigation. Even when the appellate court finds a defect in the original trial proceedings, it will most likely be deemed “harmless error.” Thus, the finality of proceedings rule in fact already applies with the handing down of the verdict at trial, even before appeal. The main procedural mechanism intended for correcting miscarriages of justice is a motion for a new trial. But this mechanism is not effective. Since safety theory and safety measures are not yet developed in the criminal justice system, we have to learn it from other areas, such as aviation, transportation and engineering. In order to bring SAFETY to post-conviction proceedings, this essay offers some safety measures.

Heriot & Kirsanow on Collateral Consequences of Felony Convictions

Gail L. Heriot and Peter Kirsanow (University of San Diego School of Law and Independent) have posted Statement of Commissioners Gail Heriot and Peter N. Kirsanow in the U.S. Commission on Civil Rights: Report on Collateral Consequences of Felony Convictions. on SSRN. Here is the abstract:

 

On June 13, 2019, the U.S. Commission on Civil Rights released a report entitled Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities. The report concerns the many legal consequences (in addition to the obvious prison terms and fines) that attach when an individual is convicted of a felony. Examples include restrictions on owning a firearm, on qualifying for public housing and on holding certain jobs. 

This Statement by individual Commissioners Gail Heriot and Peter Kirsanow was part of that report. 

There is much bipartisan agreement that the number of collateral consequences accompanying a criminal conviction has grown too large.

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Roberts on Fedders on Opioid Policing

Anna Roberts (Seattle University School of Law) has posted Lead Us Not Into Temptation: A Response to Barbara Fedders’s ‘Opioid Policing’ (94 Ind. L.J. Supplement (2019)) on SSRN. Here is the abstract:

 

In “Opioid Policing,” Barbara Fedders contributes to the law review literature the first joint scholarly analysis of two drug policing innovations: Seattle’s Law Enforcement Assisted Diversion (LEAD) program and the Angel Initiative, which originated in Gloucester, Massachusetts. Even while welcoming the innovation and inspiration of these programs, she remains clear-eyed about the need to scrutinize their potential downsides. Her work is crucially timed. While still just a few years old, LEAD has been replicated many times and appears likely to be replicated still further — and to be written about much more. Inspired by Fedders’s call for a balanced take, this Response examines a variety of sources that have described the LEAD program, investigating what they tell us about the ability of commentators to examine (and contribute to) the list of the program’s costs and benefits. Part I examines the way in which the positive potential of this program is described, and possible tendencies to paint a picture that may be unnecessarily rosy. Part II turns to the other side of the equation and highlights potential risks that commentators may downplay, or even compound.

Sacharoff on The Fourth Amendment Inventory

Laurent Sacharoff (University of Arkansas School of Law) has posted The Fourth Amendment Inventory (Iowa Law Review, Vol. 105, Forthcoming) on SSRN. Here is the abstract:

 

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a point. How can an officer know where she will find evidence of, say, drug trafficking until she has opened and at least skimmed most files? When scholars and courts try to protect privacy with ex ante limits, they engage in laudable efforts doomed to fail. Moreover, these ex ante solutions presume that the Fourth Amendment protects privacy-as-secrecy only, the right not to have the files viewed at all. True, secrecy over papers is a basic right. But the Fourth Amendment protects far more; it protects the right “to be secure” in one’s “papers.”

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