CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Defender General Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 16 Jan 2020	445
2.	Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network Wouter P. J. Wils King's College London – The Dickson Poon School of Law Date Posted: 13 Feb 2020	221
3.	Please Tweet Responsibly: The Social and Professional Ethics of Public Defenders Using Client Information in Social Media Advocacy Nicole Smith Futrell CUNY School of Law Date Posted: 06 Feb 2020	147
4.	Tasing the Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, and the Validity of Subsequent Constitutional Rights Waivers Andreas Kuersten Georgetown University - Center for Clinical Bioethics Date Posted: 08 Jan 2020	103
5.	Predictive Policing Theory Andrew Guthrie Ferguson American University Washington College of Law Date Posted: 16 Jan 2020	97
6.	Is DNA Evidence Relevant? Kenneth W. Graham University of California, Los Angeles (UCLA) - School of Law Date Posted: 12 Feb 2020 [7th last week]	97
7.	Narrative, Culture, and Individuation: A Criminal Defense Lawyer’s Race-Conscious Approach to Reduce Implicit Bias for Latinxs Walter Gonçalves Federal Public Defender, Dist. of Arizona Date Posted: 31 Jan 2020 [6th last week]	95
8.	An Empirical Assessment of Pretextual Stops and Racial Profiling Stephen Rushin and Griffin Sims Edwards Loyola University Chicago School of Law and University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics Date Posted: 10 Jan 2020	72
9.	Remorse and Judging Susan A. Bandes DePaul University - College of Law Date Posted: 11 Feb 2020 [new to top ten]	70
10.	Sovereign Speech in Troubled Times: Prosecutorial Statements as Extrajudicial Admissions Amir Shachmurove Harvard Law School Date Posted: 15 Jan 2020 Last Revised: 15 Jan 2020	69

Winship on Private Company Fraud

Verity Winship (University of Illinois College of Law) has posted Private Company Fraud on SSRN. Here is the abstract:

 

Fewer companies are going public in the United States, but public companies are still the focus of securities law and enforcement. A major exception is that anti-fraud provisions apply to all companies, public or private. Theranos is a prominent example. The Securities and Exchange Commission (SEC) sued this private company for securities fraud. This article examines one societal cost of the decline of public companies: the loss of information needed to detect and punish fraud. It analyzes the SEC’s securities fraud enforcements against private companies and assesses the information costs of moving to an anti-fraud-only regime. It concludes by identifying ways to incentivize information disclosure in the newly private universe of corporations, including a proposal to expand whistleblower protection for employees of private companies.

O'Neil & Strellman on Sanctions and Substance Use Disorder

Meghan M. O'Neil and Daniel Strellman (University of Michigan Law School and University of Michigan Law School, Law School - JD Candidate Author) have posted The Hidden Cost of the Disease: Fines, Fees, and Costs Assessed on Persons with Alleged Substance Use Disorder on SSRN. Here is the abstract:

 

The age-old adage “crime doesn’t pay” is true in more ways than one. This article stems from two years of field work in problem-solving treatment courts; circuit, district, and federal courts; addiction treatment centers; and probation offices throughout the State of Michigan. Persons experiencing substance use disorder (SUD) can rapidly amass criminal charges on any given day, given that the private use of controlled substances is illegal, as is driving while intoxicated. These repeated behaviors can, and frequently do, culminate in incarceration, supervision (e.g., probation or parole), and hefty fines and fees. Moreover, persons experiencing SUD are far from uncommon: overdose is now the leading cause of death for Americans under 50, and in 2018, focus groups with state district court judges in Michigan estimated that four out of every five criminal defendants were experiencing problematic substance use, illuminating the overwhelming degree to which SUD permeates our criminal justice system. Practitioners, academics, and policymakers involved with the justice system ought to be concerned with the costs assessed in SUD cases because they can be potentially expensive to collect, excruciatingly burdensome on vulnerable people involved with the justice system trying to maintain sobriety and re-enter society, and present a generally inefficient method of punishment when the cost of collection outweighs the total amount which is ultimately collected by the state. While crime doesn’t pay generally, it is particularly costly for vulnerable defendants experiencing SUD. Identifying best practices for supervision of SUD offenders might present avenues to improve the cost effectiveness and efficiency of fines in ways that actually reduce subsequent offending—as fines were meant to do.

Opinion on preserving review of sentencing issue

Justice Breyer delivered the opinion for the unanimous court. Justice Alito concurred, joined by Justice Gorsuch.

Opinion on "serious drug offense" under the ACCA

Justice Ginsburg filed the opinion for the unanimous Court in Shular v. United States. Justice Kavanaugh filed a concurring opinion.

Opinion permitting appellate court to perform Clemons reweighing

Justice Kavanaugh delivered the opinion of the Court in McKinney v. Arizona. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan.

Opinion rejecting Bivens action for cross-border shooting

Justice Alito delivered the opinion for the Court in Hernández v. Mesa. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Ginsburg filed a dissenting opinion joined by Justices Breyer, Sotomayor, and Kagan.

Khlopenko on International Anti-Money Laundering Regulations

Oleksandr Khlopenko (University of Economics in Katowice) has posted International Anti-Money Laundering Regulations Through the Prism of Financial Inclusion and Competition

YEARBOOK of ANTITRUST and REGULATORY STUDIES 2019, 12(19) on SSRN. Here is the abstract:

 

The last three decades have been marked by a battle with money laundering, tax evasion, and even though not strictly illegal, but no less harmful, tax avoidance after the boom in those legal and accountancy services back in the 1980s. The methods that national, international, and supranational organization have used range from doctrinal soft power to outright bullying, which were supported by their apologists for the sake of the common good. Yet the policies implemented so far have somehow not addressed the lack of theoretical and practical application of ‘inclusion’ and ‘equality’ into their framework. The same three decades have been characterized by the ever-growing wealth gap and the concentration of capital in the hands of the minority, whose prerogative, as pointed out by Gabriel Zucman in his classical work ‘The Hidden Wealth of Nations’ (2015), remains to preserve that wealth in their hands through whichever means necessary. The article researches into the implementation methods of anti-money launder-Ing (AML) regulations, their long-term effects in developing economies, and the restrictive effects in relation to financial inclusion, the marginalized population in developing economies, and the application of the European Union’s principles and laws on competition.

Cassell & Fowles on Bail Reform and Crime

Paul G. Cassell and Richard Fowles (University of Utah - S.J. Quinney College of Law and University of Utah - College of Social & Behavioral Sciences - Department of Economics) have posted Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois on SSRN. Here is the abstract:

 

Recently bail reform issues have been in the news across the country, as concerns about fair treatment of defendants and possible public safety risks from expanding pretrial release have collided. These issues involve important empirical questions, including whether releasing more defendants before trial leads to additional crimes. An opportunity to investigate this public safety issue has developed in Chicago, our nation’s second largest city. There, the Office of the Chief Judge of the Cook County Courts adopted new bail reform measures in September 2017 and reviewed them empirically in May 2019. Cook County’s Bail Reform Study concluded that the new procedures had released many more defendants before trial without any concomitant increase in crime. This article disputes the Study’s conclusions. This article explains that, contrary to the Study’s assertions, the new changes to pretrial release procedures appear to have led to a substantial increase in crimes committed by pretrial releasees in Cook County.

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Robinson & Holcomb on Indoctrination and Social Influence

Paul H. Robinson and Lindsay Holcomb (University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct) have posted Are We Responsible for Who We Are? Indoctrination and Social Influence as a Defense to Crime on SSRN. Here is the abstract:

 

A patriotic POW is brainwashed by his North Korean captors into refusing repatriation and undertaking treasonous anti-American propaganda for the communist regime. Despite the general abhorrence of treason in time of war, the American public opposes criminal liability for such indoctrinated soldiers, yet existing criminal law provides no defense or mitigation because, at the time of the offense, the indoctrinated offender suffers no cognitive or control dysfunction, no mental or emotional impairment, and no external or internal compulsion. Rather, he was acting purely in the exercise of free of will, albeit based upon beliefs and values that he had not previously held.

Retributivists committed to blameworthiness proportionality might support the community’s view of reduced blameworthiness, perhaps on some version of the argument that the offense was not committed by the offender’s authentic self. And a crime-control utilitarian might support revision of the criminal law to recognize a defense because such a serious conflict between community views and criminal law reduces the law’s moral credibility with the community and thereby undermines its ability to gain deference, compliance, assistance, and the internalization of the criminal law’s norms.

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Shestak on Legal Regulation to Counter Cybercrime

Viktor Shestak (Moscow State Institute of International Relations (MGIMO)) has posted Foreign Experience in the Legal Regulation to Counter Cybercrime (Criminal law: development strategy in the XXI century: materials of the XVII International scientific-practical conference (23-24 January 2020). Moscow: Kutafin Moscow State Law University) on SSRN. Here is the abstract:

 

The author considers foreign experience in criminalizing crimes committed using computer technology. The international experience of legislative regulation of issues of combating crimes in the field of computer technology and telecommunications was analyzed. The public needs for improving not only the conceptual apparatus, but also the elaboration of the substantive part of the objective side of a number of criminal acts, including in Russian legislation, where there is no regulatory permission for the use of cryptocurrency, and for the procedure for its treatment, are revealed.

Berman on Parole's Abolition in the Federal System

Douglas A. Berman (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Reflecting on Parole's Abolition in the Federal Sentencing System (Federal Probation, Vol. 81, No. 2) on SSRN. Here is the abstract:

 

This essay spotlights how the Sentencing Reform Act’s complete elimination of parole in the federal system has exacerbated some of the most problematic aspects of modern federal sentencing. The essay explains how parole could have been, and perhaps should now become, a bulwark against the kind of impersonalized severity that has come to define much of the modern federal sentencing experience. This essay then details how some notable recent federal sentencing developments that have functioned as a kind of "parole light,” and it closes by suggesting that advocates for federal sentencing reform consider recreating a modest, modern form of parole as an efficient and effective means of improving the federal sentencing system.

Buchhandler-Raphael on Compassionate Homicide

Michal Buchhandler-Raphael (Washington and Lee University School of Law) has posted Compassionate Homicide (Washington University Law Review, Vol. 98, No. 1, 2020) on SSRN. Here is the abstract:

 

Ample psychological studies demonstrate that emotions provide reasons for action, and are powerful drivers of a host of behaviors, including criminal acts. Studies further establish that experiencing intense emotions might impair actors’ judgment and decision-making, sometimes culminating in committing homicide.

Existing criminal law doctrines only partially correspond to these findings. They recognize mostly anger and fear as underlying the excuses of provocation, imperfect self-defense and duress by mitigating murder charges to manslaughter or otherwise excusing offenders. Currently, however, no doctrine recognizes compassion as a basis for mitigation. Under existing laws, an actor who intentionally kills a terminally ill or severely disabled close family member, wholly out of compassion for the victim, commits the crime of murder. Actor’s motive to end the victim’s suffering is irrelevant for determining the scope of criminal responsibility.

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Brazeal on Mass Seizure and Mass Search

Gregory Brazeal (Tulane University - Law School) has posted Mass Seizure and Mass Search (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:

 

As courts attempt to develop Fourth Amendment doctrine to address the threats to privacy created by digital surveillance technologies, a valuable doctrinal resource has been largely neglected: the law governing the seizure of persons. Just as courts today struggle with the specter of mass search using digital technologies, courts in the 1960s were confronted with the problem of mass seizure through the growing use of stop-and-frisk by police departments. The responses to mass seizure developed by the Supreme Court in Terry v. Ohio (1968) and its progeny provide lessons for courts today considering how to respond to the risks of digital mass search. By adopting the “mosaic theory,” the Supreme Court has already begun to apply to digital search a form of aggregative reasoning that has long been used to define the seizure of persons.

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Reitinger on Unlocking Devices and the Fifth Amendment

Nathan Reitinger (University of Maryland - Department of Computer Science) has posted Faces and Fingers: Authentication (Suffolk University Journal of High Technology Law, volume 20, Number 1, Pages 61-81 (2020)) on SSRN. Here is the abstract:

 

One of the most shocking outcomes of the pre-digital law versus post-digital world is the currently unconfirmed holding that although law enforcement may not compel the production of a password to unlock a mobile device, a finger, and likely a face, is fair game. You may be forced to “look” at your iPhone or “press” your finger against its fingerprint reader, but recitation of your password is off the table. Both logically and legally this result is quizzical. Merging these divergent outcomes, which both end in the same result—access—is the aim of this Essay, using as fodder a technical understanding of “authentication,” the organic statute behind device unlock. Because the sine qua non of authentication is identification and verification, unlocking a device necessarily imparts a truth telling: an expression of exclusivity, ownership, and control. These qualities are inherently testimonial; therefore, compelled device unlock based on a fingerprint or facial scan should be deemed to infringe upon the Fifth Amendment’s protection against self-incrimination.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Hiding Homelessness: The Transcarceration of Homelessness Sara Rankin Seattle University School of Law Date Posted: 26 Dec 2019	132
2.	An Intellectual History of Mass Incarceration Alice Ristroph Brooklyn Law School Date Posted: 23 Dec 2019	128
3.	Black Deaths Matter: The Race-of-Victim Effect and Capital Punishment Daniel S. Medwed Northeastern University - School of Law Date Posted: 30 Jan 2020	94
4.	Do Criminal Minds Cause Crime? Neuroscience and the Physicalism Dilemma John A. Humbach Pace University School of Law Date Posted: 31 Dec 2019 [5th last week]	56
5.	Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America Justin D. Levinson, Robert J. Smith and Koichi Hioki University of Hawaii at Manoa - William S. Richardson School of Law, Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) and Kobe University - Graduate School of Business Administration Date Posted: 13 Jan 2020 [6th last week]	52
6.	Sex, Reasons, Pro Tanto Wronging, and the Structure of Rape Liability Kate Greasley University of Oxford, Faculty of Law Date Posted: 30 Jan 2020 [7th last week]	48
7.	Institutionalizing Consent Myths in Grade School Shawn Fields Campbell University - Norman Adrian Wiggins School of Law Date Posted: 03 Feb 2020 [9th last week]	45
8.	Task Force Raptor: Failure of Military Justice Dennis Chapman Independent Date Posted: 31 Jan 2020	40
9.	The Elastic Meaning(s) of Human Trafficking Julie Dahlstrom Boston University School of Law Date Posted: 30 Dec 2019 [new to top ten]	38
10.	Criminalizing Sex: A Unified Liberal Theory (Book Introduction) Stuart P. Green Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 29 Jan 2020	38

Next week's criminal law/procedure argument

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

Tuesday

• Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Defender General Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 16 Jan 2020 [2nd last week]	432
2.	Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network Wouter P. J. Wils King's College London – The Dickson Poon School of Law Date Posted: 13 Feb 2020 [new to top ten]	204
3.	Please Tweet Responsibly: The Social and Professional Ethics of Public Defenders Using Client Information in Social Media Advocacy Nicole Smith Futrell CUNY School of Law Date Posted: 06 Feb 2020 [new to top ten]	137
4.	Tasing the Constitution: Conducted Electrical Weapons, Other Forceful Arrest Means, and the Validity of Subsequent Constitutional Rights Waivers Andreas Kuersten Georgetown University - Center for Clinical Bioethics Date Posted: 08 Jan 2020 [3rd last week]	94
5.	Predictive Policing Theory Andrew Guthrie Ferguson American University Washington College of Law Date Posted: 16 Jan 2020 [4th last week]	86
6.	Narrative, Culture, and Individuation: A Criminal Defense Lawyer’s Race-Conscious Approach to Reduce Implicit Bias for Latinxs Walter Gonçalves Federal Public Defender, Dist. of Arizona Date Posted: 31 Jan 2020	81
7.	Is DNA Evidence Relevant? Kenneth W. Graham University of California, Los Angeles (UCLA) - School of Law Date Posted: 12 Feb 2020 [new to top ten]	71
8.	An Empirical Assessment of Pretextual Stops and Racial Profiling Stephen Rushin and Griffin Sims Edwards Loyola University Chicago School of Law and University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics Date Posted: 10 Jan 2020	62
9.	Misplaced Constitutional Rights Brandon L. Garrett Duke University School of Law Date Posted: 23 Dec 2019 [5th last week]	61
10.	Sovereign Speech in Troubled Times: Prosecutorial Statements as Extrajudicial Admissions Amir Shachmurove Harvard Law School Date Posted: 15 Jan 2020 [9th last week]	60

Sohail & Mahmood on Islam and Trafficking in Persons

Muhammad Sohail and Ataullah Khan Mahmood (affiliation not provided to SSRN and Faculty of Shariah & Law, International Islamic University, Islamabad) have posted Islamic Criminal Jurisprudence on the Offence of Trafficking in Persons: An Interpretation of Fasad fil Arz and Hadd Offence (Pakistan Journal of Islamic Research) on SSRN. Here is the abstract:

 

Divine law is the basic law in the Muslim states that guides the positive law of the state. Islamic law is called the Shari'ah; while Islamic jurisprudence is called the Fiqh. Allah Almighty has prescribed fixed punishments for some offences. Those offences are called the Hudood offence. There is not any consensus about the exact number of Hudood offences; however the figure fluctuates from four to ten offences that fall in the category of Hudood offences. Islamic criminal jurisprudence developed in the fact that trafficking in persons is included in the category of Hudood offences. Allah almighty has prescribed limits for every act of human being. Any person violating such limits is condemned and held as sinful which is called as offence in the positive legal system. Any such violation in more shameful manner is called fasad fil Arz. Trafficking in persons is also one of the wrongs creating fasad fil Arz.

Anderson on Recidivism of Paroled Murderers and Life Imprisonment

John Anderson (University of Newcastle (Australia) - Newcastle Law School) has posted Recidivism of Paroled Murderers as a Factor in the Utility of Life Imprisonment ((2019) 31(2) Current Issues in Criminal Justice 255-268) on SSRN. Here is the abstract:

 

When a convicted murderer violently re-offends after being released, a prominent media profile results, intense fear is engendered within the community and it generates vigorous commentary, usually and understandably critical of the offender. On the other hand, there is evidence that most murders are opportunistic and singular. In this article Australian and international recidivism literature is synthesised in the specific context of murderers released to parole. This recidivism data is then analysed and evaluated as a factor in the utility of life sentences as a punishment for murder. A comprehensive synthesis, analysis and evaluation of the literature reveals that a moderately small percentage of paroled murderers recidivate by committing a violent offence and even fewer kill again. As recidivism is of significant weight in the measure of the success or otherwise of sentencing and corrections, it is contended that life imprisonment when it means indefinite incarceration without the opportunity for parole is of limited, if any, utility for most convicted murderers and for the community from which they have been excluded.