CrimProf Blog

Langer on Penal Abolitionism and Criminal Law Minimalism

Maximo Langer (University of California, Los Angeles (UCLA) - School of Law) has posted Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then (Harvard Law Review Forum, Vol. 134, Forthcoming) on SSRN. Here is the abstract:

This paper — written by invitation by the Harvard Law Review to comment on Professor Dorothy Robert’s Abolition Constitutionalism, 133 HARV. L. REV. 1 (2019) — makes three contributions to debates about penal abolitionism in the United States and elsewhere.

First, it explains the origins and contours of European and Latin American penal abolitionism and compares it to penal abolitionism in the United States. In this context, the paper explains that European and Latin American penal abolitionism in the 1970s, 1980s and the early 1990s, was in conversation with and part of a broader set of critical ideas to humanize and reduce the scope of the penal system — that included critical criminology and “criminal law minimalism.” Criminal law minimalism states that the penal system still has a role to play in society, but a substantially reduced, re-imagined and redesigned role than the one it has played in the United States.

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Socol de la Osa on Murder in Japan and the US

David U. Socol de la Osa has posted The State of Murder in Japan and the United States: A Story of Socioeconomic Integration and Police Geography (University of Pennsylvania Journal of International Law, Vol. 41, No. 3, 2020) on SSRN. Here is the abstract:

Japan has uncovered a competitive advantage in murder prevention strategies, as murder rates in the nation are some of the lowest in the world. In Japan, murder rates have been falling consistently since the post-World War II era to reach rates of 0.2 murders per 100,000 people, whereas in the United States these rates have been historically volatile, stabilizing in recent decades slightly above 5 murders per 100,000 people.

This study poses the following questions: What structural, sociolegal, and policy elements have made Japan reach such positive results in murder prevention? And what lessons can be learned from this success that may help reduce murder rates in the United States?

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Rose on Accent Discrimination in Jury Selection

Jasmine B. Gonzales Rose (Boston University School of Law) has posted Color-Blind But Not Color-Deaf: Accent Discrimination in Jury Selection (New York University Review of Law & Social Change, Vol. 44, No. 309, 2020) on SSRN. Here is the abstract:

 

Every week brings a new story about racialized linguistic discrimination. It happens in restaurants, on public transportation, and in the street. It also happens behind closed courtroom doors during jury selection. While it is universally recognized that dismissing prospective jurors because they look like racial minorities is prohibited, it is too often deemed acceptable to exclude jurors because they sound like racial minorities. The fact that accent discrimination is commonly racial, ethnic, and national origin discrimination is overlooked. This Article critically examines sociolinguistic scholarship to explain the relationship between accent, race, and racism. It argues that accent discrimination in jury selection violates constitutional and statutory law and focuses on Title VI of the Civil Rights Act of 1964, equal protection under the Fourteenth and Fifth Amendments, and the fair cross-section requirement of the Sixth Amendment. It situates accent discrimination within the broader problems of juror language disenfranchisement and racial subordination in the U.S. courts. Finally, it advocates for inclusive practices, namely juror language accommodation.

Milne on Neonaticide

Emma Milne (University of Plymouth) has posted Criminalising Neonaticide: Reflections on Law and Practice in England and Wales (In Milne E, South N, Brennan K and Turton J. (eds.) Women and the Criminal Justice System: Failing Victims and Offenders? London: Palgrave. 95-117, 2018) on SSRN. Here is the abstract:

 

This chapter considers the unusual case where a woman is suspected of killing her newborn baby following a secret pregnancy and birth. The research on what we know about the circumstances and incidence of what has been termed ‘neonaticide’ is explored. The complexities of these cases in terms of their circumstances and the vulnerability of women who conceal their pregnancies are highlighted. Following this, the difficulties, from a legal perspective, that arise when seeking to prosecute women for homicide when their babies die following an unassisted concealed birth are considered. What we know about current criminal justice practice in these cases is also explored. Unfortunately, there is limited research on current criminal justice practice in these cases, and little is therefore known about the approach taken by the police, prosecutors and the courts in cases involving suspected homicides of newborns. The need for further research on the criminal justice response is highlighted, and the appropriateness of criminalizing women and girls in these cases, particularly given their unique circumstances of vulnerability, is questioned.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Nuancing Feminist Perspectives on the Voluntary Intoxication Defence Florence Ashley University of Toronto, Faculty of Law Date Posted: 15 Jul 2020	107
2.	"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	81
3.	Making Sense of Risk Cecelia M. Klingele University of Wisconsin Law School Date Posted: 04 Aug 2020	75
4.	Valuing Black Lives: A Case for Ending the Death Penalty Alexis Hoag Columbia Law School Date Posted: 10 Jul 2020	66
5.	#MeToo and the Myth of the Juvenile Sex Offender Cynthia Godsoe Brooklyn Law School Date Posted: 30 Jul 2020	59
6.	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	53
7.	Consent, Legitimation, and Dysphoria Robin L. West Georgetown University Law Center Date Posted: 20 Jul 2020	50
8.	Incentivized Torts: An Empirical Analysis Shahar Dillbary, Cherie Metcalf and Brock Stoddard University of Alabama School of Law, Queen's University - Faculty of Law and Appalachian State University - Department of Economics Date Posted: 30 Jul 2020	46
9.	Invoking the Epidemic Diseases Act, 1897 in Light of the Epidemic Diseases (Amendment) Ordinance, 2020 Harshita Palrecha and Dhruv Nyayadhish University of Mumbai, Law Academy and University of Mumbai, Law Academy Date Posted: 28 Jun 2020	45
10.	The Thirteenth Amendment and Human Trafficking: Lessons and Limitations Kathleen Kim Loyola Law School Los Angeles Date Posted: 10 Jul 2020 [new to top ten]	43

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 University of Virginia School of Law Date Posted: 08 Jul 2020	2,711
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	813
3.	The Questionable Objectivity of Fourth Amendment Law Orin S. Kerr University of California, Berkeley School of Law Date Posted: 12 Aug 2020	278
4.	An Abolitionist Horizon for (Police) Reform Amna Akbar Ohio State University (OSU) - Michael E. Moritz College of Law Date Posted: 11 Aug 2020 [new to top ten]	274
5.	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 [4th last week]	195
6.	Constructing Separate and Unequal Courtrooms Ion Meyn University of Wisconsin Law School Date Posted: 27 Jul 2020	175
7.	How To Assess Whether Your District Attorney Is A Bona Fide Progressive Prosecutor Heather Pickerell Harvard University Date Posted: 01 Jul 2020 [5th last week]	173
8.	Mobile Phones and Criminal Investigations in India Abhinav Sekhri Delhi High Court Date Posted: 25 Jun 2020 [7th last week]	152
9.	Qualified Immunity's Boldest Lie Joanna C. Schwartz University of California, Los Angeles (UCLA) - School of Law Date Posted: 27 Jul 2020	141
10.	Procedural Law in a Time of Pandemic: Australian Courts’ Response to COVID-19 S.I. Strong The University of Sydney Law School Date Posted: 07 Jul 2020 [new to top ten]	115

Heise & Nance on Reporting Student Discipline to Police

Michael Heise and Jason P. Nance (Cornell Law School and University of Florida Levin College of Law) have posted To Report or Not To Report: Data on Schools, Student Discipline, and a 'School-to-Prison Pipeline' on SSRN. Here is the abstract:

 

A growing “school-to-prison pipeline” literature focuses on one critical consequence flowing from public schools’ increasingly “legalized” approach towards student discipline: School reports of student disciplinary incidents to law enforcement agencies. Moreover, this literature’s recent empirical turn consistently demonstrates how increases in school resource (and/or police) officers at a school correspond with the school’s increased likelihood of reporting student disciplinary incidents to law enforcement agencies. While a second core claim—that these adverse consequences do not randomly distribute across student sub-groups and disproportionately burden especially vulnerable student groups, including racial minorities—is especially prominent in the normative literature, empirical support for it remains inconclusive, at best. The school-to-prison pipeline research literature’s understandable focus on school reporting behaviors, however, entirely ignores school decisions to not report student incidents to law enforcement agencies. This Article addresses this gap in the scholarly literature by comparing determinants of schools’ decisions to report and to not report student disciplinary matters to law enforcement agencies.

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Pereira on Environmental Criminal Law

Ricardo Pereira (Cardiff University) has posted Environmental Criminal Law in the First Pillar: A Positive Development for Environmental Protection in the European Union? (European Environmental Law Review) on SSRN. Here is the abstract:

 

The quest for a ‘high’ level of environmental protection in the European Union (EU) is dependent on the successful implementation and enforcement of EU legislation by Member States. Thus, despite the fact that the Community did not originally have a mandate to impose the choice of instrument of implementation of Community Law on Member States, the decision of the European Court of Justice (ECJ) of 13 September 2005 (Commission v Council C-176/03) has finally established that while the Community does not have competence in criminal matters per se, the Community institutions may require Member States to introduce criminal sanctions for the protection of the environment. The ECJ has therefore annulled a Framework Decision of the Council which aimed at harmonising the criminal sanctions for protection of the environment of Member States under the third pillar of the EU, rather than the first pillar (which allows the Commission and ECJ to exercise stronger enforcement powers). These developments demonstrate that for the first time a supranational institution may be able effectively to enforce an obligation on national authorities to enact penal sanctions for environmental protection. The objective of this paper will be to discuss whether the harmonisation of environmental criminal standards may lead to better environmental protection within the EU.

Kreit on The Opioid Crisis and the Drug War

Alex Kreit (Northern Kentucky University - Salmon P. Chase College of Law) has posted The Opioid Crisis and the Drug War at a Crossroads (Ohio State Law Journal, Vol. 80, No. 4, 2019) on SSRN. Here is the abstract:

 

With some leaders calling for an end to the drug war and others proposing to double down on it, U.S. drug policy appears to be at a crossroads. There is perhaps no better example of this dynamic than our response to the opioid epidemic. On the one hand, policymakers have implemented a number of modest harm reduction-oriented policies, including some that would have been unthinkable at the height of the war on drugs. On the other hand, the federal government has resumed seeking mandatory minimum penalties against lower-level drug offenders as part of what the Trump administration has referred to as a “war” on opioids. Trump has even proposed the death penalty for “drug dealers” and disturbingly praised Rodrigo Duterte, President of the Philippines, for carrying out a drug war in which there have been thousands of extrajudicial killings of suspected drug sellers and users.

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Bresler & Beletsky on COVID-19, Incarceration, and the Legal System

Jessica Bresler and Leo Beletsky (Northeastern University School of Law and Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences) have posted COVID-19, Incarceration, and the Criminal Legal System (Burris, S., de Guia, S., Gable, L., Levin, D.E., Parmet, W.E., Terry, N.P. (Eds.) (2020). Assessing Legal Responses to COVID-19. Boston: Public Health Law Watch) on SSRN. Here is the abstract:

 

Even before the pandemic, contact with the criminal legal system resulted in health harms on both individual and community levels, with disproportionate impact on people of color. The COVID-19 crisis magnified the deleterious public health impact of policing, prisons, community supervision, and other elements of the United States’ vast system of control and punishment. Despite the scientific consensus that prisons and jails needed to be rapidly depopulated to avert disaster, the number of people released has remained small, resulting in explosive outbreaks of COVID-19 behind bars. Depopulation of correctional settings is also rarely paired with meaningful efforts to connect reentering individuals to vital supports. Community supervision systems failed to relax onerous probation/parole requirements, while police have taken on enforcement of physical distancing and other public health orders. Even as COVID-19 is raging, the criminal legal system is resisting changes necessary to facilitate pandemic response. With a focus on incarceration, this Chapter provides an overview of how the U.S. criminal legal system has shaped its COVID-19 response, situating prescriptions in the current debate about divestment from structures of social control in favor of a renewed focus on the social contract. This Chapter will discuss (1) how the criminal legal system has exacerbated the current public health emergency and (2) how the United States can use this moment to reform this system and its legal underpinning.

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Hoag on African American Exclusion from Jury Service

Alexis Hoag (Columbia Law School) has posted An Unbroken Thread: African American Exclusion from Jury Service, Past and Present (Louisiana Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The right to an impartial jury and the right to serve on a jury are defining aspects of the American legal system. However, this nation has yet to fully make good on these guarantees to African Americans. Black people are routinely underrepresented in jury pools and Black defendants often face juries that fail to reflect the communities in which they are prosecuted. Despite laws prohibiting racial discrimination in jury selection and legislation to improve jury representation, the under-representation of Black people on juries persists.

This article draws an unbroken thread from the history of total exclusion of Black people from juries to the contemporary under-representation of Black people in jury pools.

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Broadhurst et al. on Illicit Weapons on Darknet Markets

Roderic Broadhurst, Jack Foye, Chuxian Jiang and Matthew Ball (Australian National University (ANU), Australian National University (ANU), Institute of Advanced Studies, Research School of Social Sciences (RSSS), School of Regulation & Global Governance (RegNet), Students, Full Organization Name Australian National University (ANU), College of Business and Economics, Research School of Finance, Actuarial Studies and Applied Statistics and ANU Cybercrime Observatory) have posted Illicit Firearms and Weapons on Darknet Markets (Trends and Issues in Criminal Justice, AIC Cannberra, Forthcoming) on SSRN. Here is the abstract:

 

This study provides a snapshot of the availability of weapons across eight omnibus or ‘High Street” and twelve specialist dark-net or illicit crypto-markets between July and December 2019. Overall 2,124 weapons were identified of which 11.1% were found on niche markets. These comprised 1,497 handguns, 218 rifles, 41 sub-machine guns and 34 shotguns for sale. Also available were ammunition (n=79), explosives (n=37), and accessories such as silencers (n=24). Omnibus markets also sold other weapons (n=70) such as tasers, pepper spray and knives, and digital products (n=112) mostly DIY weapon manuals as well as chemical, biological, nuclear, and radio-logical weapons (n=12). The data allowed for estimates of the cost of weapons and some description of the 215 vendors identified, 18 (8.4%) of whom were active across more than one market.

Kopel on Red Flag Laws

David B. Kopel (Independence Institute) has posted Red Flag Laws: Proceed with Caution (Law & Psycology Review, Forthcoming) on SSRN. Here is the abstract:

 

“Red flag” laws, or “extreme risk protection orders”, have been enacted in several states. While the idea for these laws is reasonable, some statutes are not. They destroy due process of law, endanger law enforcement and the public, and can be handy tools for stalkers and abusers to disarm their innocent victims. Many order are improperly issued against innocent people.

The Conference of Chief Justices asked the Uniform Law Commissioners to draft a national model red flag law, but the Giffords organization blocked the effort — lest it offer an alternative to the extreme and reckless system being pushed by Giffords and related groups, most notably the Bloomberg entities.

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Ghanavim et al. on The "Born Alive Rule"

Khalid Ghanayim, Mohammed S. Wattad, Yoram Rabin and yaniv vaki (University of Haifa - Research Authority, Zefat Academic College, College of Management (Israel) - School of Law and affiliation not provided to SSRN) have posted Rethinking the English `Born Alive Rule`: Comparative and Doctrinal Study (ILSA Journal of International & Comparative Law, 26(2) 287, 2020) on SSRN. Here is the abstract:

 

Should a person be criminally responsible for the death of a newborn, if this death is the result of injuries inflicted, by this person, on the fetus in utero? If affirmative, which offense should this person be accountable for? This article deals with these questions, thus coping with the old-standing Common Law "Born Alive Rule" (BAR). Our assertion is that the European- Continental Law model should be adopted, thus defining a fetus as a human being from the beginning of the dilating pains. Accordingly, there is no place for the BAR and its complementary, nor for an independent offense of “Child Destruction,” which aims to cover the period between inception and the fetus exiting his mother’s womb. However, we also propose to adopt the Anglo- American Law approach in the sense that causing the death of a fully designed fetus is an aggravated abortion offense, thus mandating a severe punishment as close as possible to the punishment of a homicide offense imposed for causing the death of a human being. Consequently, it is our perception that there is no need to define the fetus, besides as a human being and as an object of the regular homicide offenses. Similarly, there is no need to define the assault of a pregnant woman, which causes the death of the fetus, as an independent offense or aggravated assault.

Wolf & Bagaric on Character at Sentencing

Gabrielle Wolf and Mirko Bagaric (Deakin University, Geelong, Australia - Deakin Law School and Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School) have posted Nice or Nasty? Reasons to Abolish Character as a Consideration in Australian Sentencing Hearings and Professionals’ Disciplinary Proceedings ((2018) 44(3) Monash University Law Review 567) on SSRN. Here is the abstract:

 

An offender’s character is a consideration that often influences the outcomes of Australian sentencing hearings; good character is generally a mitigating consideration, while bad character can increase the severity of the penalty. Character can also play a central role in lawyers’ and health practitioners’ disciplinary proceedings and lead to determinations that restrict the practise of their professions. In this article, we argue that it is unfair and unnecessary for purported evaluations of the character of the subject of a sentencing or disciplinary hearing to influence decisions made in those matters about penalties or determinations respectively. The concept of character is vague and incoherent, and lacks any settled definition or empirical foundation. Consequently, judicial and tribunal decisions that are based on assessments of individuals’ character and impinge on their legal rights and interests may be unjust and violate the rule of law. Further, it is sufficient for decision-makers to evaluate the crime or misconduct of the subjects of sentencing and disciplinary hearings, without referring to their character, to reach decisions that achieve the appropriate objectives of those proceedings and, in particular, the protection of the community. We therefore propose that the law be reformed to abolish character as a consideration in sentencing hearings and professionals’ disciplinary proceedings.

McMahon & Kirley on Emoji, Threats, and Online Grooming

Marilyn McMahon and Elizabeth A Kirley (Deakin University, Geelong, Australia - Deakin Law School and Deakin School of Business and Law) have posted When Cute Becomes Criminal: Emoji, Threats, and Online Grooming (Minnesota Journal of Law, Science and Technology Fall 2019) on SSRN. Here is the abstract:

 

Emoji are widely used and are frequently perceived as cute or benign adjuncts to online communications. Employed to humanise truncated digital messages by conveying humour, emotion and sociability, emoji perform a far more sinister role when used to convey threats or to sexually exploit minors. These activities exploit the emotive function of emoji and/or their role in facilitating trust, albeit for a criminal purpose. This paper explores the role of emoji in both threats and online grooming. Through a review of a sampling of criminal cases from diverse jurisdictions, we examine relevant prosecutions and find that emoji are being increasingly recognized as a facilitator or adjunct to criminal threats and unlawful sexual solicitation made on online platforms such as Facebook, Instagram or through private messaging. The review also examines the multiple and diverse ways in which evidence of emoji has been admitted in criminal trials, raising contentious (but hitherto largely unrecognised) issues in relation to the application of the best evidence rule. While noting the distinctive opportunities, challenges and problems posed in relation to how to interpret and best represent these stylised visual representations in criminal proceedings, the article concludes that despite these various difficulties, imposing criminal liability for threats or solicitation conveyed by emoji is a necessary evolution of the criminal law, demonstrating its adaptation to the digital age.

Levmore & Fagan on Algorithms

Saul Levmore and Frank Fagan (University of Chicago Law School and EDHEC Business School) have posted Competing Algorithms for Law: Sentencing, Admissions, and Employment (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Algorithms have found their way into courtrooms, college admission committees, and human resource departments. While defendants and other disappointed parties have challenged the use of algorithms on the basis of due process or similar objections, it should be expected that they will also challenge their accuracy, and attempt to present algorithms of their own in order to contest the decisions of judges and other authorities. The problem with this approach is that people who can transparently see why they have been algorithmically denied rights or resources can manipulate an algorithm by retrofitting data. Demands for full algorithmic transparency by policymakers and legal scholars are therefore misguided. To overcome algorithmic manipulation, we present the novel solution of algorithmic competition. This approach, versions of which have been deployed in finance, works well in law. We show how the state, a university, or an employer should set aside untested data in a lock-box. Parties to a decision then develop their respective algorithms and compete. The algorithm that performs best with the lock-box data wins. While this approach presents several complications which the Article discusses in detail, it is superior to full disclosure of data and algorithmic transparency.

Dripps on Vagueness, Fundamental Rights, and Consent to Sex

Donald A. Dripps (University of San Diego School of Law) has posted Due Process Overbreadth? The Void for Vagueness Doctrine, Fundamental Rights, and the Brewing Storm over Undefined Consent in Sexual Assault Statutes on SSRN. Here is the abstract:

 

This Article, contributed to a symposium on "Commerce, Institutions, and Consent" held at the University of Oklahoma Law School on October 19th, 2019, explains how three distinct legal developments are on a collision course. The criminal law of sexual assault has evolved to focus primarily on negative sexual autonomy, but there is no normative consensus on just what “consent” means, nor does typical statutory language suggest considered legislative choice from among the possible meanings. Meanwhile, time has reinforced the Supreme Court’s elevation of positive sexual autonomy above ordinary constitutional interests in Lawrence v. Texas. Finally, the Court’s decisions in Johnson and Dimaya have resolved decades of uncertainty in favor of a robust version of the void-for-vagueness doctrine.

Conclusory statutory condemnations of sex without consent therefore have become plausible targets of facial constitutional challenges. The Article discusses the looming collision and offers ways to mediate the emerging conflicts among the values of negative autonomy, positive autonomy, and legality.

Levenson on Climate Change and the Criminal Justice System

Laurie L. Levenson (Loyola Law School Los Angeles) has posted Climate Change and the Criminal Justice System on SSRN. Here is the abstract:

 

The past decade has been the warmest decade in history. But while there has been a great deal of attention paid to issues of infrastructure sustainability, less attention has been focused on the impact of climate change on our criminal justice system.This paper identifies how we can anticipate climate change will affect and create new challenges for law enforcement, prisons, prosecutorial and defense agencies, government offices, and communities.This article first examines three ways climate change is challenging our criminal justice system –from altering the types of crimes committed, to detrimentally impacting prisons, jails, and other criminal justice institutions, to challenging traditional doctrines of criminal law such as the necessity and duress defenses and causation. Drawing in part on lessons from the response to the COVID-19 pandemic, this article makes ten recommendations on how such challenges can be met.

Abrams on COVID and Crime

David Abrams (University of Pennsylvania Law School) has posted COVID and Crime: An Early Empirical Look on SSRN. Here is the abstract:

 

We collect data from over 25 large cities in the U.S. and document the short-term impact of the COVID-19 pandemic on crime. There is a widespread immediate drop in both criminal incidents and arrests most heavily pronounced among drug crimes, theft, residential burglaries, and most violent crimes. The decline appears to precede most stay-at-home orders, and arrests follow a similar pattern as reports. We find no decline in homicides and shootings, and an increase in non-residential burglary and car theft in most cities, suggesting that criminal activity was displaced to locations with fewer people. Pittsburgh, New York City, San Francisco, Philadelphia, Washington DC and Chicago each saw overall crime drops of over 35%. There was also a drop in police stops and a rise in Black detainee share in Philadelphia, which may reflect the racial composition of essential workers. Evidence on police-initiated reports and geographic variation in crime change suggests that most of the observed changes are not due to reporting changes.