CrimProf Blog

Rosenberg & Rosenberg on Revenge Porn

Roni M. Rosenberg and Hadar Dancig-Rosenberg (Ono Academic College - Law School and Bar-Ilan University) have posted Reconceptualizing Revenge Porn (Arizona Law Review, Vol. 63, No. 1, 2021, Forthcoming) on SSRN. Here is the abstract:

 

Revenge porn has become an epidemic in the US in recent years. The debate among legislators has focused primarily on the question of whether to criminalize the phenomenon, and most states have indeed decided to criminalize it, based on the grave harm that revenge porn inflicts on victims and the ease of distributing it. However, the conceptual questions of how to categorize the offense and why, have not received much attention. Contrary to the prevailing approaches in the US, which sporadically define revenge porn as an infringement of privacy, as obscenity or as some other offense, this Essay proposes, for the first time, theoretical grounds for categorizing it as a sex offense. This novel though possibly controversial re-conceptualization more accurately reflects the social values that are violated by the phenomenon, it more correctly labels the behavior of the offender, and it recognizes the nature of the harm inflicted on the victim. Categorizing revenge porn as a sex offense has not only theoretical but also practical implications, both for victims and released sex offenders.

Pinto on Human Rights Gone Criminal

Mattia Pinto (London School of Economics - Law Department) have posted Historical Trends of Human Rights Gone Criminal on SSRN. Here is the abstract:

 

While the traditional understanding of human rights is to restrain state authority to prevent abuses against the individual, in the last few decades human rights have been recast in a way that has made criminal law one of the main instruments for their promotion. The article explores how, since the 1970s, human rights have allowed penal power to move and expand around the globe. Five trends are explored: i) the rise of victims’ rights in criminal proceedings; ii) the emergence of UN instruments focusing on human rights enforcements by means of criminal law; iii) the development of transitional justice; iv) the promotion of human rights in international criminal law; and v) the imposition of positive duties in criminal matters by human rights bodies. The article argues that the universality of human rights has enabled criminal justice projects to spread and expand over time and space, mixing domestic and international elements. Victims’ rights advocates, NGOs, practitioners, academics, judges and policy-makers have been involved in this process. Yet, the expansion of penality by means of human rights has generally appeared as uncontroversial and important questions have been left unanswered. In particular, the assumptions underlying the idea that human rights require criminal accountability remain unexplored and unchallenged.

Thompson & Casarez on Blind Testing and Forensic Sciences

Sandra Guerra Thompson and Nicole B. Casarez (University of Houston Law Center and University of St. Thomas) have posted Solving Daubert’s Dilemma for the Forensic Sciences Through Blind Testing (57 Houston Law Review 617 (2020)) on SSRN. Here is the abstract:

 

In 1993, in Daubert v. Merrill Dow Pharmaceuticals, Inc., the Supreme Court set forth a multi-factored reliability test for scientific evidence. Of the factors courts should consider in determining the validity of scientific evidence, the Court instructed trial courts to consider the “potential error rate” of the scientific method. In 2009, the National Academy of Sciences, in its landmark report on the state of forensic science, came to this remarkable conclusion: “[N]o forensic method other than nuclear DNA analysis has been rigorously shown to have the capacity to consistently and with a high degree of certainty support conclusions about ‘individualization’ (more commonly known as ‘matching’ of an unknown item of evidence to a specific known source).” Of course, matching items of evidence to a specific known source is the central mission of forensic science, so this critique has led to considerable study and research over the past ten years aimed at developing statistical methods to measure error rates in these disciplines. Yet we have seen little progress in developing a statistical foundation for forensic disciplines, which continues to represent a pressing concern. Without reliable information about how often a forensic science process yields the wrong answer, the probative value of forensic evidence is impossible to quantify.

This Article describes a major breakthrough in developing a statistical foundation for forensic science disciplines: a cutting-edge blind proficiency testing program operating in six disciplines at the Houston Forensic Science Center (HFSC).

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Eisenberg on The Prisoner and the Polity

Avlana Eisenberg (Florida State University - College of Law) has posted The Prisoner and the Polity (New York University Law Review, Vol. 95, No. 1, 2020) on SSRN. Here is the abstract:

 

All punishment comes to an end. Most periods of imprisonment are term limited, and ninety-five percent of prisoners will eventually leave prison. Though it is tempting to think of the “end” in concrete, factual terms — for example, as the moment when the prisoner is released — this concept also has normative dimensions. Core to the notion of term-limited imprisonment is the “principle of return”: the idea that, when the prisoner has completed his or her time, that person is entitled to return to society. Yet, for the principle of return to be meaningful, it must include the idea of a fair chance of reestablishing oneself in the community. The “practices of incarceration” — including the prison environment and prison programs — are thus critically important because they can either facilitate or impede a prisoner’s reentry into society. However, apart from the question of whether conditions of confinement are cruel and unusual as defined by the Eighth Amendment, these practices of incarceration have largely avoided scholarly scrutiny.

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Newell and Koops on Comparative Smartphone Searches on Arrest

Bryce Clayton Newell and Bert-Jaap Koops (University of Oregon - School of Journalism and Communication and Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)) have posted From Horseback to the Moon and Back: Comparative Limits on Police Searches of Smartphones upon Arrest (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

The search of a smartphone, by the police, in connection with an arrest, carries the potential to intrude into the very core of an arrestee’s private life. Indeed, such a search has been compared to providing a “window[] to our inner private lives,” including aspects of our lives completely disconnected from the reasons for the arrest. In recent years, the supreme courts of the United States, Canada, and the Netherlands (as well as Dutch legislators) have handed down rules about how, and whether, police may search an arrestee’s smartphone upon arrest without first obtaining a warrant or other court order. These responses can be categorized as either container-based or content-based approaches, depending on whether the court (or legislature) focuses on protecting the privacy-sensitive content (i.e., personal information) as such or, rather, the container (i.e., the smartphone) as a proxy for protecting the privacy-sensitive content (typically) contained within the device. After analyzing and comparing the approaches adopted in each of these three countries, we argue that both approaches have advantages and disadvantages, and we suggest a combination of the two as a fruitful path forward, balancing the important privacy and law enforcement interests at stake.

Baer on Compliance Elites

Miriam H. Baer (Brooklyn Law School) has posted Compliance Elites (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

 

As corporate compliance has expanded its influence within the private sector, so too has the status of those who implement and oversee the firm’s compliance function. Chief compliance officers (CCOs), who are often (but not exclusively) lawyers by training, increasingly boast the types of resumes one associates with elite lawyers. In many ways, this is good news for compliance. There may, however, be several downsides to a strategy of relying so heavily on a cadre of compliance elites. The aim of this Article is to discuss one of these downsides.

High-performing lawyers nurture a potent, yet underexplored, cognitive blind spot.

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Berry on Eighth Amendment Presumptive Penumbras

William W. Berry (University of Mississippi School of Law) has posted Eighth Amendment Presumptive Penumbras (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Bright line constitutional rules tend to create unfair outcomes in close proximity to the bright line. In the context of the death penalty, such distinctions possess an entirely different level of seriousness that requires deeper reflection. This Article develops the concept of presumptive penumbras around capital constitutional bright lines, and argues for its application to juvenile offenders under the Eighth Amendment. Specifically, the Article advocates, within the current constitutional rules, for a presumption against the imposition of the death penalty or JLWOP in cases where the age of the offender is in proximity to—within the penumbra of— the bright line of age eighteen.

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Kaye on Forensic Statistics in the Courtroom

David H. Kaye (PSU - Penn State Law (University Park)) has posted Forensic Statistics in the Courtroom (in Handbook of Forensic Statistics (David L. Banks, Karen Kafadar, David H. Kaye, and Maria Tackett eds.), CRC Press: Boca Raton, Florida (2019)) on SSRN. Here is the abstract:

 

This chapter describes the legal framework for expert testimony involving statistical assessments in litigation. It introduces the principles governing the qualifications of statistical and other experts, the different ways in which an expert witness can assist a judge or jury, the requirements for admitting expert testimony generally, and the special rules for determining the admissibility of scientific expert testimony. It distinguishes three uses of statistical analysis in litigation—as part of a scientific procedure for obtaining test results or conclusions; as a device for assessing the value of scientific test results (or other evidence relevant to the events in a case); and as a way to help show that scientific methods are valid and reliable. It examines how the principal rules and cases on admissibility of scientific evidence apply in these situations, with special attention to the meaning of the “error rates” that courts consider in connection with scientific findings and how some conditional error probabilities can be estimated. In the course of this exposition, it briefly describes the legal concept of probative value of evidence and its relationship to error probabilities, likelihoods, and Bayes factors.

Gaggioli & Kilibarda on Interrogation

Gloria Gaggioli and Pavle Kilibarda (University of Geneva and University of Geneva - Geneva Academy of International Humanitarian Law and Human Rights) have posted Unmasking the Challenges: Interrogation and International Law (in : Steven J. Barela, Mark Fallon, Gloria Gaggioli, and Jens David Ohlin, Interrogation and Torture: Integrating Efficacy with Law and Morality, Oxford, Oxford University Press, 2020, pp. 359-391) on SSRN. Here is the abstract:

 

International human rights law and international humanitarian law absolutely prohibit all forms of torture and CIDT at all times and against anyone, even the worst of criminals. International criminal law moreover provides for the individual criminal responsibility of perpetrators of torture, cruel or inhuman treatment. Nevertheless, there remains a number of legal and practical challenges to overcome in order to ensure the effectiveness of this prohibition. The most visible challenge pertains to the implementation of the prohibition not only in domestic law but also in the concrete practice of law enforcement officials and other State agents. Other – less visible and insufficiently discussed – challenges concern laws and practices which may indirectly impact the effectiveness of the prohibition of torture and CIDT and whose acceptability under public international law is not crystal clear. For instance, is the prohibition of using evidence obtained through torture/CIDT (so called “exclusionary rule” or “fruit of the poisonous tree”) absolute and applicable in all cases? How far does the international law obligation to prosecute and punish torture/CIDT perpetrators go? To what extent may individual perpetrators of torture/CIDT invoke mitigating circumstances or even justifications to avoid or diminish punishment for the commission of such acts in extreme circumstances (e.g. to prevent the unlawful taking of lives)? Does the passing of lenient sentences upon individual perpetrators of ill-treatment entail the responsibility of the State as a failure to punish? The present article will discuss these issues in light of contemporary international practice of various human rights bodies (treaty bodies and UN special procedures) and international/mixed criminal courts tribunals.

Mansoor on Bail Reform

Hafsa S. Mansoor (Seton Hall University, School of Law) has posted Guilty Until Proven Guilty: Effective Bail Reform as a Human Rights Imperative (Elon Law Journal (Forthcoming)) on SSRN. Here is the abstract:

 

The continued existence of cash bail as a tool to subjugate the most vulnerable is among the most pressing civil rights issues today. Cash bail morphs criminal convictions from an adjudication of factual and legal guilt to an inquiry into wealth status. It creates an income-based system of differential justice by detaining the poor and freeing the rich. The negative consequences of prolonged detention therefore redound to the jailed-but-poor, distorting the criminal process by encouraging defendants to plead guilty merely to secure release. Although jurisdictions are increasingly reconsidering their bail systems, too many either allow this travesty to continue unimpeded or have enacted putative reforms which transmute inequality without eliminating it, especially through the use of algorithmic risk assessment tools which — despite being hailed as a panacea — only re-entrench existing biases under a sheen of scientific objectivity. Consequently, this paper seeks to reconceptualize bail reform, moving it from a subjective moral foible to an objective legal mandate using the framework of the international human right of access to justice. It notes the ways in which both cash bail and putative reforms violate the structural and procedural guarantees of access to justice.

Kirchner on End-of-Life Decisions During Pandemic

Stefan Kirchner (University of Lapland, Arctic Centre) has posted End-of-Life Decisions Amid the Covid-19 Pandemic as a Practical Problem of Criminal Law Theory on SSRN. Here is the abstract:

 

The current Covid-19 pandemic threatens to overwhelm health care systems. Because many patients have to be provided with ventilators, there is a risk that not all patients will receive the medical help they require. This has already happened for example in Italy, Spain and France and at the time of writing, during the second week of April 2020, it appears likely that other countries will face the same shortages. In some countries, guidelines have been created to determine under which circumstances a patient will be allocated a ventilator. This allocation of scarce life-saving resources raises significant concerns regarding the protection of the right to life and respect for human dignity. By determining that a person’s life has to end in order to re-allocate resources such as a respirator in an intensive care unit the patient is no longer an actor but becomes the mere object of the decision made by others. This is incompatible with the concept of human dignity, in particular when one takes into account the definition of human dignity employed by the German Federal Constitutional Court in several cases. This notion can be traced back to Immanuel Kant. In practice, however, medical decision-makers will be forced to choose between different patients. These choices can be deadly for one patient and potentially life-saving for the other, violate human dignity and place an inhuman burden on those who have to decide. This text aims to investigate this matter from the perspective of criminal legal theory and to provide guidance as to whether ending life-saving measures amounts to an action or an omission.

Tobon et al. on Deterrent Effect of Surveillance Cameras

Santiago Tobon, Daniel Mejia and Santiago Gómez (Universidad EAFIT, Universidad de los Andes, Colombia - Department of Economics and affiliation not provided to SSRN) have posted The Deterrent Effect of Surveillance Cameras on Crime (Documentos de trabajo, N° 20-12, 2020) on SSRN. Here is the abstract:

 

From the US to Colombia to China, millions of public surveillance cameras are at the core of crime prevention strategies. Yet, we know little about the effects of surveillance cameras on criminal behavior, especially in developing economies. We study an installation program in Medellín and find t hat t he q uasi-random allocation of cameras led to a decrease in crimes and arrests. With no increase in the monitoring capacity and no chance to use camera footage in prosecution, these results suggest offenders were deterred rather than incapacitated. We test for spillovers and find no evidence of crime displacement or diffusion of benefits to surrounding locations.

O'Hear on Media Coverage of Violent Crime

Michael M. O'Hear (Marquette University - Law School) has posted Violent Crime and Media Coverage in One City: A Statistical Snapshot (Marquette Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Many commentators have argued that high levels of public fear and anger regarding violent crime result, at least in part, from distorted coverage of crime in the news media. Among other distortions, it is said that the news media devote greatly disproportionate coverage to the most outrageous instances of violent crime, and that the media fail to provide information that would helpfully contextualize the offenses or humanize the perpetrators. In order to test these latter claims, crime stories from a daily newspaper and an Internet news site in one mid-sized city were collected for one year. As expected, in comparison with actual crime rates, the news sources disproportionately covered violent crime, and, within the violent-crime category, disproportionately covered homicides. Homicides accounted for 61% of the coverage in one news source, and 27% in the other. Also as expected, the news sources only infrequently supplied contextualizing/humanizing information. However, it remains unclear whether and to what extent such patterns in news coverage affect public attitudes toward crime and punishment.

Neal et al. on Psychological Assessments in Legal Contexts

Tess Neal, Christopher Slobogin, Michael J. Saks, David L. Faigman and Kurt F. Geisinger (Arizona State University, Vanderbilt University - Law School, Arizona State University (ASU) - Sandra Day O'Connor College of Law, University of California Hastings College of the Law and University of Nebraska at Lincoln) have posted an abstract of Psychological Assessments in Legal Contexts: Are Courts Keeping 'Junk Science' Out of the Courtroom? (20 Psychological Science in the Public Interest 134-164 (2020)) on SSRN. Here is the abstract:

 

In this article, we report the results of a two-part investigation of psychological assessments by psychologists in legal contexts. The first part involves a systematic review of the 364 psychological assessment tools psychologists report having used in legal cases across 22 surveys of experienced forensic mental health practitioners, focusing on legal standards and scientific and psychometric theory. The second part is a legal analysis of admissibility challenges with regard to psychological assessments. Results from the first part reveal that, consistent with their roots in psychological science, nearly all of the assessment tools used by psychologists and offered as expert evidence in legal settings have been subjected to empirical testing (90%). However, we were able to clearly identify only about 67% as generally accepted in the field and only about 40% have generally favorable reviews of their psychometric and technical properties in authorities such as the Mental Measurements Yearbook. Furthermore, there is a weak relationship between general acceptance and favorability of tools’ psychometric properties. Results from the second part show that legal challenges to the admission of this evidence are infrequent: Legal challenges to the assessment evidence for any reason occurred in only 5.1% of cases in the sample (a little more than half of these involved challenges to validity). When challenges were raised, they succeeded only about a third of the time. Challenges to the most scientifically suspect tools are almost nonexistent. Attorneys rarely challenge psychological expert assessment evidence, and when they do, judges often fail to exercise the scrutiny required by law.

Podgor on Obstruction of Justice

Ellen S. Podgor (Stetson University College of Law) has posted Obstruction of Justice: Redesigning the Shortcut (Brigham Young University Law Review, Forthcoming) on SSRN. Here is the abstract:

 

When one looks to accomplish consistency and predictability in the criminal justice system – important goals tied to achieving deterrence – the architecture of obstruction of justice remains important. It is insufficient to suggest that we have consistency in sentencing by using sentencing guidelines, when the charging process is undermined by its failure to provide uniformity. Achieving a consistent charging framework for obstruction of justice needs to be individualized, remain true to the contextual setting, and provide consideration for the specific processes of a trial, sentencing, or impeachment. But it also needs to have a structure that is not rearranged dependent upon the Attorney General, United States Attorney, the politics of the time, and varying interpretations of government officials.

This Article examines obstruction of justice, looking at it in three different contexts: as a criminal offense, a sentencing enhancement, and as a basis for a judicial or presidential impeachment.

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Roberts on "Victims"

Anna Roberts (St. John's University - School of Law) has posted Victims, Right? (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears before the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is the very thing to be decided. This usage matters in part because of its possible consequences: it risks obscuring and weakening the defense side of our two-sided system. It matters also because of the underlying impulses that it reveals, and that surface in analogous usages such as the widespread pre-adjudication use of “offender.” When channeled into a criminal system these impulses will recur as pre-judgments of crime, in ways that threaten defendants’ constitutional protections. But we can frame and channel them in a more hopeful way. This Article posits that we turn prematurely to the word “victim” in part because of impulses, upon hearing of harm, rapidly to acknowledge and decry it; and that we rush to “offender” because of a concomitant desire for accountability and answers. Abolitionist work provides a model for honoring those impulses through structures other than a criminal system, and criminal language, with which they will inevitably clash.

Henderson & Strang on Double Jeopardy's Dual Sovereignty

Stephen E. Henderson and Dean Strang (University of Oklahoma - College of Law and University of San Francisco School of Law) have posted Double Jeopardy’s Dual Sovereignty: A Tragic (and Implausible) Lack of Humility (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a conception of constitutional community contrary to our Framers’ own; and when one reaches for a grab bag of history, jurisprudence, and commentary, that starting point makes a difference. Second, the Court ignored both the logic of America’s founding and recent double jeopardy jurisprudence, both of which strongly counsel against the exception in the federal-state context. We hope that a future Court will be more receptive to the nation’s constitutional structure and to the genuine but limited needs of criminal justice.

Murray on Populist Prosecutorial Nullification

Kerrel Murray (University of North Carolina School of Law) has posted Populist Prosecutorial Nullification (96 N.Y.U. L. Rev., Forthcoming) on SSRN. Here is the abstract:

 

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have tested the boundaries of this power by asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use.

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Carroll on Pretrial Detention and COVID-19

Jenny E. Carroll (University of Alabama - School of Law) has posted Pretrial Detention in the Time of COVID-19 (Northwestern University Law Review, 2020) on SSRN. Here is the abstract:

 

It is hard to overstate the impact of COVID-19. When it comes to the criminal justice system, the current COVID-19 crisis has shone a light on pre-existing flaws. Long before the first confirmed case in Seattle or elsewhere, America’s jails and prisons were particularly susceptible to contagions, exacerbated by problems from overcrowding to over policing to lack of reentry programs. This Essay focuses on one aspect of the challenges the criminal justice system faces in light of COVID-19 and beyond—that of a pretrial detention system that falls more harshly on poor and minority defendants, has swollen local jail populations, and has incentivized pleas contributing in its own right to prison overcrowding.

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Stoughton on Fourth Amendment Spillage and Police Violence

Seth W. Stoughton (University of South Carolina School of Law) has posted Fourth Amendment Spillage and the Regulation of Police Violence (Emory Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

Within policing, few legal principles are more widely known or highly esteemed than the “objective reasonableness” standard that regulates police uses of force. The Fourth Amendment, it is argued, is not just the facet of constitutional law that governs police violence, it sets out the only standard that state lawmakers, police commanders, and officers themselves should recognize. Any other regulation of police violence is inappropriate and unnecessary.

The Constitution does not actually regulate the use of force, though. It regulates seizures. Some uses of force are seizures. A surprising number of others — including some police shootings — are not. Uses of force that do not amount to seizures fall entirely outside the ambit of Fourth Amendment regulation. And even when a use of force does constitute a seizure, the Fourth Amendment is a distressingly inapt regulatory tool. There is, in short, a fundamental misalignment between what the Fourth Amendment is thought to regulate and what it actually regulates, and there are good reasons to doubt the efficacy of that regulation even when it applies. Put simply, the Fourth Amendment provides a profoundly flawed framework for regulating police violence.

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