CrimProf Blog

"Should N.Y. Be Jailing Parolees for Minor Lapses During a Pandemic?"

From The New York Times:

Since March 27, according to new admissions data from the Vera Institute of Justice, 295 people have returned to city jails because of low-level parole transgressions. The first two people to die of Covid-19 on Rikers were there precisely for these reasons: missing parole appointments and failing a drug program. One of them, a man named Raymond Rivera, had waited months for a final decision on his release and died the day after it was rendered.

Simmons on Big Data and Procedural Justice

Ric Simmons (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Big Data and Procedural Justice: Legitimizing Algorithms in the Criminal Justice System (15 Ohio State Journal of Criminal Law 573 (2018)) on SSRN. Here is the abstract:

 

 

Big data algorithms are becoming more common in the criminal justice system: they are used to provide more effective allocation of police resources, to notify police of potentially dangerous individuals at specific locations, to guide efforts to intervene with individuals before they engage in criminal activity, to advise judges making decisions about pre-trial detention, and to provide guidance to judges at sentencing. The debate about the propriety of using these algorithms has primarily focused on whether they are fair to the defendants they are evaluating. However, those in favor of using these tools in the criminal justice system must also consider another potential hurdle: whether these new tools will be accepted by the general public. For centuries, decisions in the criminal justice system have been made by individuals: police officers, judges, bureaucrats, and legislators. The general public is accustomed to these decision-makers and, for the most part, accepts their legitimacy. However, the public may not be as comfortable with the idea that critical criminal justice decisions are made or heavily influenced by computer programs instead of human beings. This question is a critical one for big data supporters: even if these tools can provide predictions that are more fair, efficient, and accurate than the clinical judgments made by human beings, they will never become widespread if they cannot gain public support.

"Lawmaker questions Google's CEO about geofence warrants"

From CNet, via NACDL's News-of-Interest:

Geofence warrants are facing legal challenges across the US, and on Wednesday, a member of Congress questioned Google about the increasingly-popular police surveillance method. 

. . .

Unlike a normal search warrant, geofence warrants don't need a specific person or probable cause to get data from Google. It's essentially a search in reverse, where police send a warrant to Google for a time and a place, demanding that the company provides information on all devices that were in that region during the specified time. 

Buell on Retiring Corporate Retribution

Samuel W. Buell (Duke University School of Law) has posted Retiring Corporate Retribution (Law and Contemporary Problems, Vol. 83, 2020) on SSRN. Here is the abstract:

 

This Article about retributive theory is aimed at retiring that discussion in the corporate context. Corporate criminal liability should be understood not, as at present, mostly as an instrumentalist matter but entirely as one. By focusing primarily on whether corporations can be blameworthy, that is, deserving of retribution, arguments about corporate retributivism have failed to advance debate to this position. Whether or not corporations can be blameworthy (the better argument shows that they can be), corporations cannot be retributively punished. On any of the major accounts in punishment theory of what must be done to make good on an imperative to deliver retributive desert, corporations cannot be subjects of retributive criminal punishment. In other words, the case for corporate retribution falters not at the stage of desert of punishment but at the stage of punishing in the name of desert. To the extent that retributive discourse nonetheless persists in the field of corporate crime, it is doing instrumental work. Nowhere is this more evident than in the U.S. Department of Justice’s program of enforcing corporate criminal liability.

Miceli & Mungan on Making Harmful Acts Illegal

Thomas J. Miceli and Murat C. Mungan (University of Connecticut - Department of Economics and George Mason University - Antonin Scalia Law School, Faculty) have posted The Limit of Law: Factors Influencing the Decision to Make Harmful Acts Illegal on SSRN. Here is the abstract:

 

This paper examines factors affecting the decision of whether or not to make certain harmful acts illegal. It considers factors related both to the cost of law enforcement and to the crime commission decision. On the enforcement side, illegality is limited by the existence of fixed notice and response costs, which are unrelated to the harm from the act, and also by costs of imposing punishment. In addition, illegality is limited by a finite marginal productivity of detection, one cause of which is legal error. On the commission side, illegality is limited if all offenders have strictly positive benefits from committing the act. The paper concludes by examining how the optimal scope of law is affected by its "expressive function," the idea that some people are deterred by the mere fact that an act is illegal. We specifically ask how the scope of law changes if more people behave in this way. The answer depends on whether "efficient" violations of the law are possible, which in turn depends on whether offenders' gains are counted in welfare.

"'Hidden Brain': How Psychology Was Misused In Teen's Murder Case"

From NPR, via the NACDL's News-of-Interest:

LISA KAVANAUGH: You certainly can't undo the power of having been told through hypnosis you're going to be able to go back and zoom in on the faces of the people you saw and freeze the events so that you can, you know, zoom in on their features. Once you've been told that as an eyewitness, it's really hard not to believe the strength of the memory that you have.

Murphy on Cannabis Decriminalisation

Julian R. Murphy (University of Melbourne, School of Law) has posted A Precarious High - Cannabis Decriminalisation, Authorisation and Federalism (2 University of New South Wales Law Journal Forum 1) on SSRN. Here is the abstract:

 

On 31 January 2020, the cultivation and possession of small amounts of cannabis became legal under the law of the Australian Capital Territory. This appeared to be a paradigm example of laboratory federalism, whereby small jurisdictions experiment with laws and policies that are not yet palatable or feasible elsewhere in the country. It seems unlikely, however, that the story will be that simple. The federal Attorney-General Christian Porter has said that the new ACT law does not provide a defence to the federal provisions criminalising cannabis possession. Accordingly, ACT residents growing or possessing small amounts of cannabis run the risk of federal prosecution. This situation is unsatisfactory and untenable for a number of reasons, but particularly because of the way the Damoclean sword of federal prosecution is being used to deter conduct that has been rendered lawful by the democratic process of the ACT. This article critically analyses the ACT and federal laws at issue and concludes that Porter is correct – the ACT law does not provide an effective defence to federal prosecution. The article concludes by discussing the values of federalism that are raised by the current tension between the two laws. Ultimately, it is suggested that the ACT should be allowed to formulate its own criminal laws and policies, free from the threat of federal intervention.

"The Centuries-Long History of Racism in Surveillance Tech"

From Wired, via the NACDL's News-of-Interest:

Sidney traces racialized surveillance tech to its origins, as far back as slavery and early prison designs. He draws parallels between the intentional, all-seeing design of the panopticon and the omni-present cameras that surround us today. He takes us through the story of Robert Williams—a Black man who was recently misidentified as a criminal suspect due to faulty facial recognition—and explains how these kinds of systems become so flawed in the first place.

"Police Requests for Google Users’ Location Histories Face New Scrutiny"

From The Wall Street Journal:

Police use of a type of warrant to monitor Google users’ locations en masse is staring down its first legal and political challenges as scrutiny of law enforcement tactics grows.

Criminal defendants in Virginia and San Francisco are disputing “geofence” warrants, which authorities can use to scan geographic areas and time periods for suspects through user location histories stored by technology companies. As these motions await arguments and potential decisions as soon as August, New York lawmakers are pushing legislation to ban the practice.

Klemfuss et al. on Encoding Bias in Children

J. Zoe Klemfuss, Kelly McWilliams, Hayden Henderson, Alma Olaguez and Thomas D. Lyon (University of California, Irvine - Department of Psychological Science, City University of New York - John Jay College of Criminal Justice, USC Gould School of Law, University of California Irvine and University of Southern California Gould School of Law) have posted Order of Encoding Predicts Young Children's Responses to Sequencing Questions (In press, Cognitive Development) on SSRN. Here is the abstract:

 

We propose that young children exhibit an order of encoding bias, such that they are inclined to report or act out events in the order in which they were originally encoded. This bias helps to explain why children assume that events they first hear described are in chronological order and why they often appear to understand “after” better than “before” when they are questioned about experienced events. Asking children about a sequence of events as a whole (in particular using “first”) could avoid order of encoding biases, because children would not have to answer questions about events within the sequence. In the present study, 100 2- to 4-year-old children participated in creating simple stories in which a story child interacted with five objects, thus creating five unrelated events. Children then responded to questions asking them to identify which action occurred “before” and “after” the third event and which action occurred “first” and “last” in the story. We hypothesized that (1) children would exhibit a tendency to answer “before” and “after” questions with the event that occurred after the queried event, thus impairing performance on “before” questions; (2) children would respond more accurately to questions about what occurred “first” and “last” than to questions about “before” and “after”; (3) children would respond more accurately to questions about “first” than questions about “last,” and (4) children’s performance would improve with age. The hypotheses were supported. Critically, children’s errors when responding to “before”/ “after” questions were consistent with an order of encoding bias.

West on Consent, Legitimation, and Dysphoria

Robin L. West (Georgetown University Law Center) has posted Consent, Legitimation, and Dysphoria (Modern Law Review, Vol. 83, Issue 1, January 2020, Pp. 1-34) on SSRN. Here is the abstract:

 

Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation of lawful from unlawful, legitimate from illegitimate, and good from bad. This is a particularly pronounced trend in the areas of sexual and reproductive rights and ethics. Consensual sex has almost completely displaced marital sex as the demarcation of not only criminal from laudatory sex but also good from bad sex. Likewise, the consensuality of a pregnancy is increasingly the demarcation of a celebrated rather than mourned pregnancy, rather than its marital province. This development is justly celebrated as a breakthrough in women's rights and equality, but it carries costs. This essay develops some of the limits and perils of an over‐reliance on consent and consensuality as the primary criterion of the morality of sex and reproduction. Consent is not always a trustworthy guide to wellbeing, for both general reasons, and reasons specific to sexual and reproductive life.

Acevedo on Reclaiming Black Dignity

John Acevedo (Alabama Law) has posted Reclaiming Black Dignity (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

 

As American society seeks to institute police reforms in the wake of the protests following George Floyd’s murder, it must include communities that have been victimized by police in those reform processes. When police discriminate against individuals from a particular community, they enact a dignity taking on that community and accrue the taken dignity to themselves. For reform to be meaningful dignity must be taken from the police and restored to the communities it was taken from. This can be achieved by excluding the police and their unions from the reform process; creating elected civilian review boards with the power to fire; and removing an assortment of police privileges.

Holberg on Involuntary Commitment

Ross K. Holberg has posted No Court of Last Resort: The Future of Involuntary Commitment in the South Dakota Courts in Light of the Slow Death of Matter of Woodruff (South Dakota Law Review, Vol. 65, No. 1, 2020) on SSRN. Here is the abstract:

In 1997, the South Dakota Supreme Court decided Matter of Woodruff, a short opinion that dismissed as moot two appeals of involuntary mental health commitments. The court declined to reach the merits, reasoning that the appellants’ release from incarceration in the state hospital rendered their appeals moot. Since then, the South Dakota Supreme Court has published no opinion deciding an appeal of an involuntary commitment order. Practitioners confirm this is because they know their clients’ cases will be dismissed after their release consistent with Woodruff.

Two alarming phenomena follow: first, a vulnerable population has no access to judicial review of stigmatizing orders that result in the loss of legal rights; and second, the State of South Dakota has no judicial elaboration of its involuntary commitment laws. This lack of precedent does not just make South Dakota an outlier; it is a sign of a constitutionally infirm process. While other courts have been highly critical of Woodruff, it has remained deeply entrenched, due to norms descended from its errant mootness doctrine.

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McCall-Smith on Fundamental Rights and US Counterterrorism

Kasey L. McCall-Smith (University of Edinburgh School of Law) has posted Us Counterterrorism and the Denial of Fundamental Rights from Torture to Fair Trial (K McCall-Smith, A Birdsall and E Casanas Adam (eds), Human Rights in Times of Transition: Liberal Democracies and the Challenges of National Security (Edward Elgar), Forthcoming) on SSRN. Here is the abstract:

 

Despite the Universal Declaration of Human Rights (UDHR) exhortation that ‘all human beings are born free and equal in dignity and rights,’ the post-9/11 assault on fundamental human rights has proved that this cosmopolitan ideal is under threat. Of the wide-ranging human rights that have been degraded in the name of protecting civilians in the so-called ‘war on terror’, the right to a fair trial is among the most crucial. However, the precursor to its demise was the ejection of the absolute prohibition against torture in the name of protecting the human rights to liberty and freedom, often described as the right to national security. This chapter explores how the US’s co-option of human rights language as a rhetorical tool to eject certain human rights in relation to specific individuals or groups of individuals underpins the growing challenges presented by national security discourse in liberal democracies. In particular it examines the way in which the US response to 9/11, both in the immediate aftermath and almost two decades on, must be addressed and the relationship between individual liberty and national security reconciled if we are to progress toward a more equal, rather than divided, world. The analysis focuses on the current military commissions taking place in Guantánamo where five men are on trial for terrorism and war crimes in relation to the planning and execution of the 9/11 attacks on the US in US v Khaled Sheikh Mohammad et al. The chapter specifically considers the right to trial without undue delay, the right to a public trial and the right to effective remedy for human rights breaches. Finally, the chapter concludes with some observations about how to address the ejection and co-option of human rights in counter-terrorism efforts.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Brief on Behalf of Former Federal Prosecutors and High-Ranking Department of Justice Officials in United States v. Flynn Andrew Manuel Crespo Harvard Law School Date Posted: 12 Jun 2020	495
2.	Fear of a Black and Brown Internet: Policing Online Activism Sahar F. Aziz and Khaled A. Beydoun Rutgers Law School and Wayne State University Law School Date Posted: 04 Jun 2020	348
3.	The Corrective Justice Theory of Punishment Jacob Bronsther Harvard Law School Date Posted: 04 Jun 2020 [6th last week]	89
4.	"It Doesn’t Work!": The Symbolic Aspect of Law, From the Criminal Law to Bill 21 Phil Lord McGill University - Faculty of Law Date Posted: 23 Jun 2020 [new to top ten]	71
5.	Coherence and Illegal Claims Matthew Dyson Faculty of Law and Corpus Christi College, University of Oxford Date Posted: 26 May 2020 [9th last week]	60
6.	Coronavirus and Mass Incarceration: Why Inmates are Safer in Prison Michael Conklin Angelo State University Date Posted: 28 May 2020 [10th last week]	60
7.	Does Criminalizing Torture Deter Police Torture? Mark S. Berlin Marquette University Date Posted: 15 Jun 2020 [new to top ten]	42
8.	Justice Undone William S. Laufer and Robert Hughes University of Pennsylvania - Legal Studies Department and Legal Studies and Business Ethics Department, The Wharton School Date Posted: 02 Jul 2020 [new to top ten]	42
9.	The Reasonable Black Person Standard in Criminal Law: Impartiality, Justice and the Social Sciences Kerry L. Shipman, MPA, J.D. Independent Date Posted: 19 May 2020 [new to top ten]	41
10.	Essay: Cyberbullying and Freedom of Speech David L. Hudson, Jr. Belmont University - College of Law Date Posted: 25 May 2020 [new to top ten]	41

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Why Do Rule 48(a) Dismissals Require 'Leave of Court'? Thomas Frampton Harvard Law School Date Posted: 08 Jul 2020 [new to top ten]	2,654
2.	A Few Bad Apples? Racial Bias in Policing Felipe Goncalves and Steven Mello University of California, Los Angeles (UCLA) - Department of Economics and Dartmouth College Date Posted: 17 Jun 2020 [1st last week]	689
3.	Brief on Behalf of Former Federal Prosecutors and High-Ranking Department of Justice Officials in United States v. Flynn Andrew Manuel Crespo Harvard Law School Date Posted: 12 Jun 2020 [2nd last week]	495
4.	Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment's Right to Counsel Neel U. Sukhatme and Jay Jenkins Georgetown University Law Center and Texas Criminal Justice Coalition Date Posted: 19 Jun 2020 [3rd last week]	190
5.	Mobile Phones and Criminal Investigations in India Abhinav Sekhri Delhi High Court Date Posted: 25 Jun 2020 [4th last week]	120
6.	Pandemics, Risks and Remedies Lee Kovarsky University of Texas School of Law Date Posted: 27 May 2020 [5th last week]	112
7.	AI in the Courtroom: A Comparative Analysis of Machine Evidence in Criminal Trials Sabine Gless University of Basel Date Posted: 10 Jun 2020 [6th last week]	101
8.	Precedent on Precedent Nina Varsava University of Wisconsin-Madison Date Posted: 01 Jun 2020 [7th last week]	94
9.	Jumping Hurdles to Sue the Police Sunita Patel UCLA School of Law Date Posted: 25 May 2020 [8th last week]	89
10.	How To Assess Whether Your District Attorney Is A Bona Fide Progressive Prosecutor Heather Pickerell Harvard University Date Posted: 01 Jul 2020 [new to top ten]	87

Walker & Kobayashi on Restorative Reentry

Lorenn Walker and Leslie Kobayashi (Hawai'i Friends of Restorative Justice & University of Hawai‘i at Manoa and Government of the United States of America - District of Hawai'i) have posted Hawaii Federal Court Restorative Reentry Circle Pilot Project (Federal Probation, Volume 84 Number 1, June 2020) on SSRN. Here is the abstract:

 

In 2015 the United States District Court for the District of Hawaii Pretrial Services Office collaborated with Hawa'ii Friends of Restorative Justice (HFRJ), a small Honolulu non-profit, to provide and measure the outcomes of a reentry planning circle process for incarcerated individuals who were either facing a federal prison sentence or had been sentenced to federal prison. In 2017 the pilot was expanded to individuals on probation under the court's jurisdiction. This article uses a case the authors worked on to examine the reentry planning process and the pilot project.

Frohock & Jimenez on Harm and Intent in Wire Fraud

Christina Frohock and Marcos Jimenez (University of Miami - School of Law and White & Case LLP) have posted Exactly What They Asked For: Linking Harm and Intent in Wire Fraud Prosecutions (University of Miami Law Review, Vol. 74, No. 4, 2020) on SSRN. Here is the abstract:

 

Recent opinions have obscured the U.S. Court of Appeals for the Eleventh Circuit’s guidance on federal criminal fraud prosecutions. In 2016, the court decided United States v. Takhalov and found no crime of wire fraud where the alleged victims received the benefit of their bargain. Just three years later, the concurring opinion in United States v. Feldman criticized that prior reasoning as puzzling, inviting problematic interpretations that become untethered from the common law of fraud. This Article tracks the development of the court’s view and argues for an interpretation of Takhalov that links harm to the specific intent necessary for a federal criminal fraud charge.

Wechsler on Sex Trafficking and Participation in the Criminal Justice Process

Rachel J. Wechsler (New York University School of Law) has posted Deliberating at a Crossroads: Sex Trafficking Victims' Decisions about Participating in the Criminal Justice Process (Fordham International Law Journal, Vol. 43, No. 4, 2020) on SSRN. Here is the abstract:

 

Following the trauma associated with being exploited in the commercial sex industry, sex trafficking victims are faced with the decision of whether or not to cooperate with criminal justice authorities in the investigation and prosecution of their traffickers. This Article comprehensively explores the contours of this decisionmaking process with primary, empirical research conducted with victims themselves. The study utilized in-depth, qualitative research methods with a sample of thirty-nine female sex trafficking victims in the Netherlands, most of whom are from common “source” countries for human trafficking. The data reveal that victims often engage in a complex balancing of various factors weighing in favor of and against participating in the criminal justice process prior to finalizing their decisions, which challenges stereotypes of trafficking victims as simple-minded, “passive objects.” The most salient factors emerging from the data were retribution for harms inflicted by their traffickers, fear of their traffickers and/or their traffickers’ associates (primarily fear of retaliation), and a desire to prevent the victimization of others. This Article situates the different factors emerging from the data both within the landscape of empirical research with similar populations and within the broader socio-legal context, highlighting structural constraints on victims’ exercise of agency within the decision-making process. In doing so, it underscores the indispensability of victims’ perspectives in realizing a victim-centered, human rights-based approach to human trafficking.

Smith on The Supreme Court's 2018-19 Term

Steven R. Smith (California Western School of Law) has posted Supreme Court 2018–2019: A New Justice, A 'Capital' Term, and Some Light on the 'Shadow Docket' (45 Journal of Health Service Psychology 115 (2019)) on SSRN. Here is the abstract:

 

The 2018–2019 Supreme Court session included rulings on professional practice issues and social justice matters. A large number of cases examined issues related to capital punishment, particularly around matters of competency. Challenges concerning jury selection and racial bias were addressed. Federal sex offender registration was upheld. Other decisions involved abortion, arbitration, expert witnesses, sentencing, and sexual offender registration. Thirty-nine percent of cases were unanimous (down from the recent average), and 26% were decided by a 5–4 vote (up from the recent average).