CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Statement of Commissioner Gail Heriot Gail L. Heriot University of San Diego School of Law Date Posted: 08 Apr 2020	1,855
2.	Understanding Violent-Crime Recidivism J.J. Prescott, Benjamin Pyle and Sonja B. Starr University of Michigan Law School, University of Michigan at Ann Arbor and University of Michigan Law School Date Posted: 09 Apr 2020	500
3.	Detecting Mens Rea in the Brain Owen D. Jones, Read Montague and Gideon Yaffe Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Yale Law School Date Posted: 30 Apr 2020	271
4.	Criminal Law in Crisis Benjamin Levin University of Colorado Law School Date Posted: 11 May 2020 [6th last week]	100
5.	Artificially Intelligent Persons Nadia Banteka Villanova University - School of Law Date Posted: 05 Apr 2020 [4th last week]	94
6.	'Terroristic Threats' and COVID-19: A Guide for the Perplexed Chad Flanders, Courtney Federico, Eric Harmon and Lucas Klein Saint Louis University - School of Law, Saint Louis University, School of Law, Saint Louis University, School of Law and Saint Louis University, School of Law Date Posted: 13 May 2020 [5th last week]	93
7.	Nondelegation and Criminal Law F. Andrew Hessick and Carissa Byrne Hessick University of North Carolina School of Law and University of North Carolina School of Law Date Posted: 16 Apr 2020	87
8.	'See This Empty Cage Now Corrode': The International Human Rights and Comparative Law Implications of Sexually Violent Predator Laws Michael L. Perlin and Heather Cucolo New York Law School and New York Law School Date Posted: 12 May 2020 [new to top ten]	85
9.	Coronavirus 'Cures' and the Courts Chad G. Marzen and Michael Conklin Florida State University and Angelo State University Date Posted: 30 Mar 2020 [8th last week]	79
10.	When You're a Star: The Unnamed Wrong of Sexual Degradation Daniel Maggen Yale University, Law School Date Posted: 27 Mar 2020 [9th last week]	68

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	In the Age of Decriminalization, Is the Odor of Marijuana Alone Enough to Justify a Warrantless Search? Meghan Matt Southern University Law Review Date Posted: 20 Apr 2020 [3rd last week]	211
2.	If a Picture is Worth a Thousand Words – How Many in An Emoji? Emojis in Common Law Criminal Courts Caitlin Hicks Victoria University of Wellington, Faculty of Law, Student/Alumni Date Posted: 30 Mar 2020 [4th last week]	192
3.	Pretrial Detention in the Time of COVID-19 Jenny E. Carroll University of Alabama - School of Law Date Posted: 15 Apr 2020 [5th last week]	178
4.	Populist Prosecutorial Nullification Kerrel Murray University of North Carolina School of Law Date Posted: 16 Apr 2020 [6th last week]	143
5.	#BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life Kimberly Kessler Ferzan University of Virginia, School of Law Date Posted: 04 May 2020 [8th last week]	118
6.	The Evidence Rules that Convict the Innocent Jeffrey Bellin William & Mary Law School Date Posted: 27 Mar 2020 [7th last week]	116
7.	The Institutional Design of Community Control Jocelyn Simonson and K. Sabeel Rahman Brooklyn Law School and Brooklyn Law School Date Posted: 08 May 2020 [new to top ten]	109
8.	The Shadow Bargainers Ronald F. Wright, Jenny Roberts and Betina Wilkinson Wake Forest University - School of Law, American University - Washington College of Law and Wake Forest University Date Posted: 07 May 2020 [new to top ten]	99
9.	Discovering Racial Discrimination by the Police Alison Siegler and William Admussen University of Chicago Law School and University of Chicago Law School Date Posted: 31 Mar 2020 [10th last week]	97
10.	Vagueness Attacks on Searches and Seizures Joel S. Johnson Independent Date Posted: 09 Apr 2020 [9th last week]	97

Bagaric on Sentences for Animal Cruelty

Mirko Bagaric (Swinburne Law School) has posted A Rational Approach to Sentencing Offenders for Animal Cruelty: A Normative and Scientific Analysis Underpinning Proportionate Penalties for Animal Cruelty Offenders (South Carolina Law Review, Vol. 71, No. 4, 2019) on SSRN. Here is the abstract:

 

Over the past few decades, animal welfare groups and others have exposed the immense cruelty that humans inflict on animals. Despite this, the United States has been slow to criminalize comprehensively and penalize appropriately human cruelty towards animals. This is attributable to the lack of consistent, coherent definitions of animal cruelty, and established, considered jurisprudence regarding the objectives and principles that should inform the sentencing of animal cruelty offenders. As a consequence, there is a lack of uniformity and coherence regarding the sentencing of animal cruelty offenders. This Article addresses this under-researched area of law and proposes an overarching definition of animal cruelty and a rational sentence framework for the sentencing of offenders who commit acts of animal cruelty. We recommend the development of a classification of animal cruelty offenses that differentiates between animals on the basis of their sentience, and encapsulates the varied nature of such offending. Further, we suggest that, in sentencing animal cruelty offenders, courts should pursue the objectives of community protection and rehabilitation to some degree, but most importantly they should attempt to impose penalties that reflect the principle of proportionality, which provides that the harshness of the sanction should match the seriousness of the offense. We also argue that both classification and sentencing of animal cruelty offenses should be informed by: (i) scientific evidence of animals’ physiology and psychology (which helps explain the nature of animal cruelty); (ii) social norms regarding human interaction with animals; and (iii) moral theory (which establishes why it is ethically imperative to protect certain animals from human cruelty). The reform proposals advanced in this Article will make this area of the law more consistent and coherent, and often result in the imposition of harsher sentences on animal cruelty offenders.

Conklin on Rap Lyrics as Evidence

Michael Conklin (Angelo State University) has posted The Extremes of Rap on Trial: An Analysis of the Movement to Ban Rap Lyrics as Evidence (The Extremes of Rap on Trial: An Analysis of the Movement to Ban Rap Lyrics as Evidence, 95 INDIANA L.J. THE SUPPLEMENT 1 (2020)) on SSRN. Here is the abstract:

 

This Article is a review of Rap on Trial: Race, Lyrics, and Guilt in America. The book largely focuses on the dangers of allowing rap lyrics to be presented as evidence in criminal trials. The authors posit that the fictitious and hyperbolic nature of rap lyrics are misrepresented by prosecutors as autobiographical confessions that document illegal activity and violent character traits of defendants. The authors compare rap to other musical genres and conclude that racism is the underlying cause for why the genres are treated differently in court. The authors also advocate for evidence nullification and argue for a complete ban on all rap-related evidence at trial. This Article assesses both the strengths and weaknesses of the evidence presented to support these claims. Furthermore, this Article discusses pragmatic issues such as how the author’s advocacy for their more extreme proposals may be counterproductive to enacting their more reasonable proposals.

Ward on Stand-Your-Ground Laws

Cynthia V. Ward (William and Mary Law School) has posted Three Questions About 'Stand Your Ground' Laws (Notre Dame Law Review Reflection Vol. 95, No. 119, 2020) on SSRN. Here is the abstract:

 

In August 2019, Michael Drejka was convicted of manslaughter after a Florida jury rejected his argument that he killed the victim, Markeis McGlockton, in self-defense. In the national media, the case was widely billed as a test of Florida’s “Stand Your Ground” statutes. That description is (at least) extremely misleading. The controversy over Drejka’s self-defense claim once again draws attention to widespread confusion about what Stand Your Ground statutes mean and how they impact longstanding legal rules governing self-defense. It is important to resolve this confusion. Stand Your Ground laws, and the issues they generate, do raise serious questions about what constitutes justice in cases that give rise to claims of self-defense. In order to resolve those questions, we need (1) to understand what self-defense doctrine actually says and how it was designed to work, and (2) to specify the ways in which Stand Your Ground provisions do, and do not, affect that doctrine. In this essay I attempt to resolve three main sources of confusion over Stand Your Ground.

Leo on Deception in Interrogation

Richard A. Leo (University of San Francisco - School of Law) has posted Structural Police Deception in American Police Interrogation: A Closer Look at Minimization and Maximization (In Lutz Eidam, Michael Lindemann, & Andreas Ransiek eds., Interrogation Confession and Truth: Comparative Studies in Criminal Procedure 183–207, Nomos Press, Forthcoming) on SSRN. Here is the abstract:

 

Deception is one of the most distinctive features of American police interrogations of criminal suspects. For example, false evidence ploys, a routine police interrogation technique, are designed to make the suspect believe — through intentional misrepresentations — that he has no choice but to confess because the police possess highly incriminating evidence against him. While scholars have written extensively about the use, effects, and morality of false evidence ploys, this chapter argues that police use of deception in interrogations should be understood in the broader context of the American adversary system.

After a brief literature review, Part II of this chapter describes the structure of American police interrogations and argues that they are strategically manipulative and deceptive because they occur in the context of a fundamental contradiction.

Continue reading

Ward on Yaffe on Juveniles

Cynthia V. Ward (William and Mary Law School) has posted Criminal Culpability and the Political Meaning of Age (38 Criminal Justice Ethics 123 (2019)) on SSRN. Here is the abstract:

 

In The Age of Culpability, Gideon Yaffe argues that all minors who commit crimes should be treated more leniently by the criminal law than similarly situated adults. All “kids” deserve a break, he contends, because they are less culpable as a class than adults. They are less culpable because they less of a “say” over the content of the law, and they have less of a “say” because they are denied the right to vote. Yaffe attacks the belief that kids should get a break because they are psychologically different from adults in relevant ways, arguing that difference-based rationales for giving kids a break do not go far enough in justifying the result he seeks – lenient treatment by the criminal law for all kids, all the time. Yaffe proposes to replace the Difference Hypothesis with the affirmative argument that all kids deserve a break because all kids are denied the right to vote. This review essay raises questions about both Yaffe’s negative argument against what I call the “Difference Hypothesis”, and his affirmative argument that kids deserve leniency for their crimes because they lack voting rights. The review suggests that for purposes of deciding criminal policy, Yaffe’s affirmative proposal suffers from a number of potential weaknesses that call for further explanation, while the Difference Hypothesis has demonstrated a number of important strengths which Yaffe fails to consider.

Kerr on Art Threats

Andrew Jensen Kerr (Georgetown University Law Center) has posted Art Threats and First Amendment Disruption (Duke Journal of Constitutional Law & Public Policy (2021, Forthcoming)) on SSRN. Here is the abstract:

 

The novel problem of art threats, typified by threatening rap lyrics, has destabilized our First Amendment regime. We traditionally relied on industry gatekeepers like music labels or museum curators to determine what counts as art. However, with the advent of the Internet, amateur artists can share their aesthetic output with a public audience, bypassing the threshold quality control work of the Art World. This has forced U.S. courts to acknowledge foundational questions about what kind of art is covered by the First Amendment.

In brief, the First Amendment covers good art. But judges don’t want to make qualitative judgments, and law and rap scholars don’t want to admit that most individuals who attempt to rap simply aren’t very skilled at it. In this paper I offer a synthetic conception of the First Amendment that contextualizes this aesthetic gatekeeper problem within a freedom of speech doctrine that is forced to distinguish art from threat. I consider some pragmatic solutions for how either civil society or the state can mirror the essential quality control work done by prior institutional actors. My thinking is informed by a noble understanding of rap and the cultural assumptions that explain the boundaries of our First Amendment.

Matt on Race and Rape

Meghan Matt (Southern University Law Review) has posted The Intersection of Race and Rape: Viewed through the Prism of a Modern-Day Emmett Till (ABA Human Rights Magazine, December 2019) on SSRN. Here is the abstract:

 

This Article explores the historical practice of exploiting and violating the bodies of African American women with impunity. The authors explores stories of modern-day Emmett Tills, specifically, how African American defendants accused of raping white women are treated differently under the law.

Shestak & Silkin on Consolidated Theft

Viktor Shestak and Dmitriy Silkin (Moscow State Institute of International Relations (MGIMO) and MGIMO) have posted Consolidated Theft in the U.S. Criminal Law (Law and the modern economy: new challenges and prospects: III conference with international participation (9 April 2020). Saint Petersburg: Saint Petersburg State University of Economics.) on SSRN. Here is the abstract:

 

Authors analyze the U.S. criminal law on non-violent crimes against property consolidated into one offence - consolidated theft. Authors examine the peculiarities of penal codes of several states of the U.S. in the context of the approach to the legal implementation of the provisions on theft, give different approaches to the definition of this offence by states’ penal codes and also analyze the reasons of the consolidated theft implementation by states’ jurisdictions.

Kruglyak on UK Deferred Prosecution Agreements

Vladimir Kruglyak (University of Westminster - School of Law) has posted The Regulatory Criminal Law in the UK: Analyzing Dissenting Factors of the Deferred Prosecution Agreements on SSRN. Here is the abstract:

 

In this paper the inter-temporal analysis of the case law is employed to depict the trajectory of changes leading to high amount settlements for financial corporate crimes serving as a substitute for criminal prosecution and sentencing. Placed in conjunction with statutory review of historic criminal proceedings, the opportunistic behaviour of the Crown Prosecution Services is analysed. The Serious Fraud Office and its regulatory efforts to prosecute corporate crimes using Deferred Prosecution Agreement tested for the economic purpose. From its historic English traditions to punish wrongdoers until recent wrongful death cases, the reluctance of the government to sentence offenders under the criminal law is exposed. An array of reasons for abandoning the settlements is offered for the legislative review.

Orenstein on Cultural Property Transactions

Karin Orenstein has posted Risking Criminal Liability in Cultural Property Transactions (North Carolina Journal of International Law, Vol. 45, 527, 2020) on SSRN. Here is the abstract:

This Comment explores when buyers of cultural property cross the line from taking business risks to engaging in criminal conduct. The Comment applies the National Stolen Property Act (NSPA) and the conscious avoidance doctrine to potential red flags in hypothetical cultural property transactions. When buyers are presented with red flags about a piece’s provenance and choose not to investigate, they cannot rely on deliberate ignorance as a defense to a charge that they knowingly transacted in or possessed stolen cultural property.

Davis on COVID-19 Human Endangerment

Benjamin Davis (University of Toledo College of Law) has posted COVID-19 Human Endangerment As A Domestic Crime or an International Crime Against Humanity on SSRN. Here is the abstract:

 

To analyze human endangerment in the COVID-19 pandemic in the United States as a crime, this paper starts with a review of domestic law in a comparative manner.

The experience in France with regard to high government officials being charged with domestic crimes for the contaminated blood scandal during the AIDS epidemic is presented and analyzed noting the key legal rules expressed by the French courts in that context.

This paper goes on in a comparative approach in the context of the COVID-19 pandemic to examine such criminal liability in the US system with a discussion of the murky and complex issues of qualified immunity.

Continue reading

Lewis on The Paradox of Recidivism

Christopher Lewis (Harvard Society of Fellows) has posted The Paradox of Recidivism (Emory Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in U.S. states that use sentencing guidelines. And three- strikes, habitual offender, and career criminal laws mandate extremely harsh penalties for repeat offending. Most of the people we lock up in the U.S. — especially those who are Black or Latino, and poor — have at least one prior conviction. The “recidivist sentencing premium” is thus one of the main determinants of race- and class-based disparity in our prisons, and of the overall size of our incarcerated population.

This article shows, counterintuitively, that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions have moral reason to do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium.

Continue reading

Galle on The Economic Case for Rewards over Imprisonment

Brian D. Galle (Georgetown University Law Center) has posted The Economic Case for Rewards Over Imprisonment (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

There seems to be a growing social consensus that the U.S. imprisons far too many people for far too long. But reform efforts have slowed in the face of a challenging question: how can we reduce reliance on prisons while still discouraging crime, particularly violent crime? Through the 1970’s, social scientists believed the answer was an array of what I will call preventive benefits: drug and mental health treatment, housing, and even unconditional cash payments. But early evaluations of these programs failed to find much evidence they were successful, confirming a then-developing economic theory that predicted they would fail.

This Article calls for a return to prevention.

Continue reading

Shipman on The Reasonable Black Person Standard

Kerry L. Shipman, MPA, J.D. has posted The Reasonable Black Person Standard in Criminal Law: Impartiality, Justice and the Social Sciences (Southern Journal of Policy and Justice, 13, 2019) on SSRN. Here is the abstract:

The article titled, 'The Reasonable Black Person Standard in Criminal Law: Impartiality, Justice and the Social Sciences', examines the reasonable person standard, long used by courts to analyze whether a suspect acted similarly to the way any other "reasonable person" would have acted under the given circumstances.

While the standard is currently applied in an objective manner, it should instead consider the suspect's race, accounting for the idea that a reasonable white person and a reasonable black person would quite likely respond differently to any situation involving law enforcement.

Continue reading

Daly on Employment and Criminal Records

Mariah L. Daly has posted Boxed Into a Corner: The Fight to Ban Employers from Boxing out Deserving Job Applicants on the Basis of Criminal Record (Drug Enforcement and Policy Center, No. 20, May 2020) on SSRN. Here is the abstract:

Between 70 and 100 million adults have a criminal record of some kind that are revealed by criminal background checks. One of the most severe and pervasive collateral consequences is difficulty securing gainful employment. Ban-the-Box reform is crucial as a starting point for fair chance hiring, especially in the age of rapidly developing technology and the largely unfettered ability to get information. The availability of criminal records has functioned less as a “public safety” precaution and more like a scarlet letter branded on the chest of millions Americans. Demanding unnecessary disclose of criminal records before a conditional job offer hinders reintegration, increases recidivism, jeopardizes public safety, sabotages the economy, affronts human dignity, and causes devastating harm to society overall. This paper argues that Ban-the-Box laws should be expanded and made uniform across jurisdictions to help prevent against unjust discrimination based on criminal record. The vast differences in the levels of protection provided across Ban-the-Box jurisdictions and their shortcomings are analyzed and model Ban-the-Box legislation that incorporates concepts from the most protective existing laws is proposed.

Bignami on EU Law in Populist Times

Francesca Bignami (George Washington University - Law School) has posted EU Law in Populist Times: Crises and Prospects (Francesca Bignami ed., 2020) on SSRN. Here is the abstract:

 

EU Law in Populist Times: Crises and Prospects analyzes the sovereignty-sensitive EU law that has emerged over the past decade—in economic policy, human migration, internal security, and constitutional fundamentals (rule-of-law policies to combat democratic backsliding). These are legal areas at the heart of state sovereignty, over which the EU’s prerogatives accelerated following the multiple crises that hit beginning in 2009. They are also EU policies that occupy center stage in the acrimonious debates that have emerged between European establishment parties and populist political forces, precisely because of the huge economic, social, and constitutional stakes involved in reaching into core state functions. In other words, both theoretical and political reasons drive the book to take on the broad sweep of sovereignty-sensitive law—the new EU law is categorically different from the old, technocratic regulatory law of the single market; and the new EU law is extraordinarily important because of the bitter, some would say, existential political debate between establishment parties and populist forces that it has catalyzed.

Continue reading

Evans on Categorical Approaches

Sheldon Evans (St. John's University - School of Law) has posted In the Shadow of Shular: Conduct Can Unify the Disjointed Categorical Approaches on SSRN. Here is the abstract:

 

The categorical approach, which is the method federal courts use to ‘categorize’ which state law criminal convictions can trigger an enhanced sentence under the Armed Career Criminal Act (ACCA), is one of the most confusing doctrines in criminal sentencing. For thousands of criminal offenders every year, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing the ACCA’s harsh fifteen-year mandatory minimum sentence. But this elements-based categorical approach has unwittingly undermined one of the most important principles in our determinative sentencing system; by basing federal punishment on state-law criminal definitions, similar defendants are often treated differently based on what state they may have committed past crimes.

Continue reading

Siegler & Zunkel on Federal Bail Advocacy

Alison Siegler and Erica Zunkel (University of Chicago Law School and University of Chicago Law School) have posted Rethinking Federal Bail Advocacy to Change the Culture of Detention (The Champion (Journal of the National Association of Criminal Defense Lawyers), Forthcoming) on SSRN. Here is the abstract:

 

The federal bail system is in crisis, with three out of every four people locked in a cage despite the presumption of innocence. Disheartening as the numbers are, we defense attorneys have the power to free our clients through zealous advocacy at bail hearings. Bond advocacy is all the more important now. As the COVID-19 pandemic ravages federal jails, pretrial release has become a matter of life or death. All of us who represent clients in federal court have a responsibility to redouble our efforts to defend our clients’ fundamental right to liberty. To change the culture of detention, we need to radically rethink our advocacy and ensure that all of the players follow the Bail Reform Act’s defense-friendly rules. This article provides statistics to illustrate the contours and costs of the federal pretrial detention crisis and action steps for bringing federal pretrial detention practices back in line with the law. We can change the culture of detention by using the action steps, tethering our arguments to the statute and the data, and filing more bond motions.