CrimProf Blog

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers:

Tuesday

• Borden v. U.S.: Whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.
• Jones v. Mississippi: Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Due Process in a Fee-Driven State Penny White and Glenn Harlan Reynolds University of Tennessee College of Law and University of Tennessee College of Law Date Posted: 17 Sep 2020	1,440
2.	Policing Procedural Error in the Lower Criminal Courts Justin Murray New York Law School Date Posted: 11 Sep 2020 [3rd last week]	165
3.	The Pandemic Juror Melanie D. Wilson University of Tennessee College of Law Date Posted: 17 Sep 2020 [4th last week]	157
4.	Remote Criminal Justice Jenia Iontcheva Turner Southern Methodist University - Dedman School of Law Date Posted: 08 Oct 2020 [new to top ten]	155
5.	Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom Susan A. Bandes and Neal Feigenson DePaul University - College of Law and Quinnipiac University - School of Law Date Posted: 01 Sep 2020 [6th last week]	138
6.	Prosecutors and Mass Incarceration Shima Baradaran Baughman and Megan S. Wright University of Utah - S.J. Quinney College of Law and The Pennsylvania State University (University Park) – Penn State Law Date Posted: 11 Sep 2020 [5th last week]	138
7.	Traffic Without the Police Jordan Blair Woods University of Arkansas - School of Law Date Posted: 19 Oct 2020 [8th last week]	113
8.	The Law and Science of Eyewitness Evidence Thomas Albright and Brandon L. Garrett Salk Institute for Biological Studies and Duke University School of Law Date Posted: 01 Oct 2020 [7th last week]	106
9.	The Search for Clarity in an Attorney's Duty to Google Michael Murphy University of Pennsylvania Law School Date Posted: 28 Aug 2020	85
10.	Surveying the Digital Abortion Diary: A Preview of How Anti-Abortion Prosecutors Will Weaponize Commonly-Used Digital Devices As Criminal Evidence Against Pregnant People and Abortion Providers in a Post-Roe America Cynthia Conti-Cook Independent Date Posted: 16 Sep 2020 [new to top ten]	84

Lyon et al. on Expert Testimony on Child Sexual Abuse Denial

Thomas D. Lyon, Shanna Williams and Stacia Stolzenberg (University of Southern California Gould School of Law, University of Southern California Gould School of Law and Arizona State University (ASU) - School of Criminology & Criminal Justice) have posted Understanding Expert Testimony on Child Sexual Abuse Denial After New Jersey v. J.L.G.: Ground Truth, Disclosure Suspicion Bias, and Disclosure Substantiation Bias (Forthcoming, Behavioral Sciences & the Law) on SSRN. Here is the abstract:

 

The New Jersey Supreme Court held in New Jersey v. J.L.G. (2018) that experts can no longer explain to juries why sexually abused children might deny abuse. The Court was influenced by expert testimony that “methodologically superior” studies find lower rates of denial. Examining the studies in detail, we argue that the expert testimony was flawed due to three problems with using child disclosure studies to estimate the likelihood that abused children are reluctant to disclose abuse: the ground truth problem, disclosure suspicion bias, and disclosure substantiation bias. Research identifying groups of children whose abuse can be proven without reliance on disclosure reveals that denial of sexual abuse is common among abused children.

Pascoe & Novak on Executive Clemency in Death Cases

Daniel Pascoe and Andrew Novak (City University of Hong Kong (CityUHK) - School of Law and George Mason University - The Department of Criminology, Law & Society) have posted Deadly Justice Without Mercy in East Asia? (International Journal of Comparative and Applied Criminal Justice (2020 Forthcoming)) on SSRN. Here is the abstract:

 

This article explores executive clemency in death penalty cases in China, Taiwan and Japan. All three neighbouring legal jurisdictions are notable for frequently passing death sentences and executing prisoners over the past several decades without the executive branch of government granting individualised pardon or commutation to any death row prisoner since at least 1975, if not earlier. This highly unusual feature of all three nations’ death penalty practice suggests a policy puzzle. The authors’ case study comparison of these three East Asian jurisdictions reveals two common explanatory features. First is the availability of alternative postappellate procedures to mitigate punishment in cases undeserving of death, and to limit execution totals for policy reasons. Second is the inability of condemned clemency petitioners to directly access the ultimate clemency decision-maker, unlike in most death penalty retentionist jurisdictions. The authors conclude by making several policy recommendations on this basis.

Harris on Corporate Liability for Bribery

Hannah Harris (Macquarie Law School) has posted Corporate Liability for Bribery – in Favour of Systematic Approach (Current Issues in Criminal Justice, Forthcoming) on SSRN. Here is the abstract:

 

This article argues in favour of a systematic approach to corporate liability for all bribery offences, including commercial bribery. Australia’s Banking Royal Commission and numerous international corruption scandals have demonstrated a “culture of corruption” in our corporations. Australia has taken steps to strengthen the laws that criminalise foreign bribery, but there has been less interest in addressing the legal approach to commercial bribery. This article uses a comparative methodology to demonstrate that many of the arguments in favour of strict liability for corporations in cases of public sector and foreign bribery can also be applied to commercial bribery. A comparison of anti-bribery laws across common law jurisdictions (Australia, UK, and USA) illustrates opportunities to streamline the legal approach. Streamlining the legal approach to corporate liability for all bribery offences including commercial bribery will simplify compliance and incentivise adoption of policies and practices aimed at reducing corrupt conduct in commercial transactions; promoting meaningful changes in corporate culture. Enhancing ethical corporate culture and reducing corruption and misconduct in commercial transactions is necessary to protect society, safeguard market efficiency and ensure economic stability in an increasingly interconnected world.

Harman-Heath on A Taxonomy of Police Violence

Scott Harman-Heath has posted Tripartite Deadly Force: A New Taxonomy to Explain Police Violence on SSRN. Here is the abstract:

Police kill a thousand Americans every year. Scholarship and doctrine discuss decisions to kill as if they are all alike—but they are not. Killing an active shooter and an unarmed teenager should not be labeled or understood as coequal. In the realm of state uses of force, distinctions between types of kinetic force have long been recognized, but such a distinction has not made its way into literature about police uses of deadly force. Failing to distinguish between types of deadly force, is not only intellectually dishonest but analytically counterproductive.

In this article, I contend that police killings can be broken into three categories: reactive, anticipatory, and preemptive deadly force.

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McNamara on Insanity and Indefinite Detention

Donna McNamara (Newcastle Law School, University of Newcastle NSW) has posted The Insanity Defence, Indefinite Detention and the UN Convention on the Rights of Persons with Disabilities (Dublin University Law Journal (2018)) on SSRN. Here is the abstract:

 

The defence of insanity has long provided a means by which persons with a psychosocial disability can be detained in a designated facility, for the purpose of receiving medical treatment. As such, the operation of the insanity defence results in the removal of the right to liberty and the right to consent to treatment, for potentially an indefinite period of time. The defence has been subject to criticism for many decades, but it is now time to take stock of its relevance, especially in light of the Convention on the Rights of Persons with Disabilities. This paper will critically examine the application of the insanity defence in Ireland and investigate its future considering Ireland’s expected ratification of the UN Convention on the Rights of Persons with Disabilities.

Oswald & Kotsoglou on Polygraphs

Marion Oswald and Kyriakos N. Kotsoglou (University of Northumbria at Newcastle and University of Northumbria at Newcastle - School of Law) have posted Not ‘Very English’ – on the Use of the Polygraph by the Penal System in England and Wales on SSRN. Here is the abstract:

 

One of the most striking developments in the penal system in England and Wales is the increasing use of the polygraph by probation services. Despite severe criticism from scientific institutions and academic discourse, the legal order increasingly deploys the long-discredited polygraph in order to extract adverse statements from released offenders. Our article is structured as follows. First, we summarise the statutory and regulatory framework for the current use of the polygraph in the monitoring of sex offenders released on licence, and the proposed expansion of the polygraph testing regime as set out in the Domestic Abuse Bill and the Counter-Terrorism and Sentencing Bill respectively. We then review our findings in respect of governing policies and procedures uncovered by our FOI-based research, highlighting the concerning lack of consistency in respect of both practice and procedure. In the subsequent sections we set out the main arguments deployed by polygraph proponents, and posit our view that none of these arguments can withstand scrutiny. We conclude by proposing a moratorium on any further use of the polygraph by the State, in order to thoroughly evaluate its effect on the integrity of the legal order, human rights and, more generally, the Rationalist aspirations of the penal system. In addition, and given already existing law, we propose a process of independent oversight and scrutiny of the use of the polygraph in licence recall decisions and other situations impacting individual rights, especially police investigations triggered by polygraph test results.

Charles & Garrett on Federal Gun Crimes

Jacob Charles and Brandon L. Garrett (Duke University School of Law and Duke University School of Law) have posted The Trajectory of Federal Gun Crimes on SSRN. Here is the abstract:

 

Federal gun prosecutions have for decades been a growing part of the federal docket, reflecting not only the priority placed on reducing gun violence, but also a broad range of quite distinct federal priorities. In this Article, we explore for the first time the evolution of federal gun crimes. They cover conduct ranging from gun distribution, possession of particular weapons such as machine guns, use by drug traffickers, and individual possession of firearms by felons. Second, we describe how in practice, uses of enacted gun crimes have adapted to criminal law priorities of Congress and federal prosecutors over time. Most recently, they became prominent in immigration prosecutions, while in the 1980s, drug gangs were the priority.

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Thoreson on Criminalizing Discrimination

Ryan Thoreson has posted Discriminalization: Reevaluating Sexuality, Punishment, and Human Rights on SSRN. Here is the abstract:

 

After decades of pressing for the decriminalization of same-sex conduct, advocates around the globe have increasingly urged states to use the power and authority of criminal law to address bias against lesbian, gay, bisexual, and transgender (LGBT) persons. In dozens of countries as diverse as Angola, Ecuador, Malta, Mongolia, and Taiwan, lawmakers have criminalized various forms of anti-LGBT conduct and proscribed them with lengthy periods of incarceration. This embrace of criminalization has often been articulated in the language of human rights, using that framework to expand rather than curb the scope of criminal law.

In this Article, I look to debates over LGBT rights to analyze what I call discriminalization, or the adoption and application of carceral penalties for discriminatory conduct.

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Gentithes on Felony Disenfranchisement

Michael Gentithes (University of Akron School of Law) has posted Felony Disenfranchisement and the Nineteenth Amendment (Akron Law Review, Vol. 53, 2020) on SSRN. Here is the abstract:

 

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails.17 Both argue that some potential votes are somehow less worthy than others, and thus the authors of those votes ought to be excluded from the marketplace of political ideas. And both assert a distinction between the votes of some citizens thought to be of higher political value, and those thought unworthy of having their voices counted in the political arena. This Article examines the historical response to those arguments and suggests that they can be applied forcefully in the contemporary debate over felony disenfranchisement.

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Husak on Retributivism and Over-Punishment

Douglas Husak has posted Retributivism and Over-Punishment on SSRN. Here is the abstract:

I argue that a retributive penal philosophy should not be blamed for contributing to our present epidemic of mass incarceration and tendency to over-punish. My paper has three parts. In the first, I make a number of conceptual points about retributivism that reveal it to have the resources to combat our current crisis. In the second part, I construct desert-based arguments for decriminalizing some offenses that have led too many persons to be punished. In the third part, I suggest that desert favors an expansion in the scope and number of defenses that have the potential to retard the severity of punishment. If my arguments are sound, retributivism should be regarded as part of the solution to our predicament rather than its cause.

Oded on Multi-Jurisdictional Anti-Corruption Enforcement

Sharon Oded (Rotterdam Institute of Law and Economics) has posted Multi-Jurisdictional Anti-Corruption Enforcement: Time for a Global Approach (Brooklyn Journal of Law and Policy, Vol. 28, No. 2, 2020) on SSRN. Here is the abstract:

 

With the rise of globalization, foreign corruption has become a prominent enemy of the world’s economy. Over time, numerous international initiatives―such as the OECD and United Nations conventions against foreign corruption―have enlisted a growing number of sovereign states to join in the global war against that enemy. As a consequence, global enhancement of anti-foreign corruption enforcement often results in duplicative, multi-jurisdictional enforcement, such that multiple enforcement actions are initiated against the same corporation by several authorities, in one or more jurisdictions, in relation to the same misconduct. This phenomenon, which was recently addressed by the US Department of Justice in its Anti-Piling On Policy promulgated in May 2018, lies at the heart of this Article. After identifying the practical implications of the newly-promulgated policy in recent multi-jurisdictional enforcement cases—which have taken the form of (i) multi-jurisdictional cooperation, (ii) crediting, and (iii) sidestepping—this Article analyzes recent multi-jurisdictional enforcement practices as formalized by the Anti-Piling On Policy, highlights several of their shortcomings, and proposes a set of guiding principles which, if adopted by sovereign states, may enhance the effectiveness of the global fight against foreign corruption.

Outlaw on An Honest Drug Offender Sentencing Letter

Lucius Outlaw III (Howard University School of Law) has posted An Honest Drug Offender Sentencing Letter (Ohio State Journal of Criminal Law, Vol. 17, No. 2, 2020) on SSRN. Here is the abstract:

 

A sentencing letter in a federal drug case that explores the causes (fictions) that have transformed sentencing in such cases into more performance theater than an exercise in dispensing justice and punishment.

Joy & McMunigal on Lawyer's Obligations to Avoid Assisting Crime and Fraud

Peter A. Joy and Kevin C. McMunigal (Washington University in St. Louis - School of Law and Case Western Reserve University School of Law) have posted A Lawyer's Obligations to Avoid Assisting in a Crime or Fraud (35 ABA Criminal Justice 74 (Fall 2020)) on SSRN. Here is the abstract:

 

The American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility recently issued an advisory ethics opinion in which it found that a lawyer has an ethical duty to investigate when a client or prospective client tries to retain a lawyer for a matter that could be legitimate but which further inquiry would reveal to be criminal or fraudulent. In Formal Opinion 491 (2020), the Committee primarily focused on a lawyer's obligations under Model Rule 1.2(d to avoid counseling or assisting a client in crime or fraud in nonlitigation settings. The Committee also considered other duties, such as competence, diligence, communication, honesty, and withdrawal, which the Committee concluded were additional sources of a duty to inquire. In this paper, we evaluate the Committee's analysis and its conclusion that there is a duty to inquire.

Henderson & Thomas on Rapping on Criminal Justice

Stephen E. Henderson and Jordan Thomas (University of Oklahoma - College of Law and Colorado State Public Defenders) have posted Seeing Those We’ve Rendered Invisible – A Clarion Call for Criminal Justice (Ohio State Journal of Criminal Law, 2021 Forthcoming)

 

Jonathan Rapping, Gideon's Promise: A Public Defender Movement to Transform Criminal Justice (Beacon Press 2020)

In this brief review, we situate Rapping’s work among those demanding criminal justice reform, praise an unrelated bonus, and propose a friendly amendment to nudge his vision over the finish line of justice. It will not be enough to provide newly enabled and supported public defenders to those our systems consider indigent. We ought to provide them to us all.

Henderson & Lyon on Questioning Children

Hayden Henderson and Thomas D. Lyon (USC Gould School of Law and University of Southern California Gould School of Law) have posted Children’s Signalling of Incomprehension: The Diagnosticity of Practice Questions During Interview Instructions (Forthcoming in Child Maltreatment) on SSRN. Here is the abstract:

 

Forensic interviewers are routinely advised to instruct children that they should indicate when they do not understand a question. This study examined whether administering the instruction with a practice question may help interviewers identify the means by which individual children signal incomprehension. We examined 446 interviews with children questioned about abuse, including 252 interviews in which interviewers administered the instruction with a practice question (4- to 13-year-old children; M = 7.7). Older children more often explicitly referred to incomprehension when answering the practice question and throughout the interviews, whereas younger children simply requested repetition or gave “don’t know” responses, and individual children’s responses to the practice questions predicted their responses later in the interviews. Similarly, older children were more likely to seek confirmation of their understanding of interviewers’ questions and to request specification. The results highlight the need for interviewers to test and closely monitor younger children’s responses for ambiguous signs of incomprehension.

Beckett & Francis on The Origins of Mass Incarceration

Katherine Beckett and Megan Ming Francis (University of Washington and University of Washington - Department of Political Science) have posted an abstract of The Origins of Mass Incarceration: The Racial Politics of Crime and Punishment in the Post–Civil Rights Era (Annual Review of Law and Social Science, Vol. 16, pp. 433-452, 2020) on SSRN. Here is the abstract:

 

This article examines the origins of US mass incarceration. Although it is clear that changes in policy and practice are the proximate drivers of the prison boom, researchers continue to explore—and disagree about—why crime control policy and practice changed in ways that fueled the growth of incarceration in all 50 states. One well-known account emphasizes the centrality of racial and electoral politics. This article more fully explicates the racial politics perspective, describes several friendly amendments to it, and explores a range of arguments that challenge it in more fundamental ways. In the end, we maintain that although mass incarceration has many drivers, it cannot be explained without reference to the centrality of racial politics; the importance of the crime issue to the GOP electoral strategy that emerged in the wake of the civil rights movement; and the nature of the decentralized, two-party electoral system in the United States.

Pryor et al. on Sources of Racial Disparity in Police Behavior

Marie Pryor, Kim Buchanan and Phillip Atiba Goff (City University of New York - John Jay College of Criminal Justice, City University of New York - John Jay College of Criminal Justice and City University of New York - John Jay College of Criminal Justice) have posted an abstract of Risky Situations: Sources of Racial Disparity in Police Behavior (Annual Review of Law and Social Science, Vol. 16, pp. 343-360, 2020) on SSRN. Here is the abstract:

 

Swencionis & Goff identified five situations that tend to increase the likelihood that an individual police officer may behave in a racially disparate way: discretion, inexperience, salience of crime, cognitive demand, and identity threat. This article applies their framework to the realities of police work, identifying situations and assignments in which these factors are likely to influence officers’ behavior. These insights may identify opportunities for further empirical research into racial disparities in such contexts and may highlight institutional reforms and policy changes that could reduce officers’ vulnerability to risks that can result in racially unjust actions.

O'Brien & Grosso on Race and Criminal Trials

Barbara O'Brien and Catherine M. Grosso (Michigan State University - College of Law and Michigan State University College of Law) have posted an abstract of Criminal Trials and Reforms Intended to Reduce the Impact of Race: A Review (Annual Review of Law and Social Science, Vol. 16, pp. 117-130, 2020) on SSRN. Here is the abstract:

 

This review collects initiatives and legal decisions designed to mitigate discrimination in pretrial decision making, jury selection, jury unanimity, and jury deliberations. It also reviews initiatives to interrupt implicit racial biases. Among these, Washington's new rule for jury selection stands alone in treating racism as the product of both individual actors’ decisions and long-standing legal structures. Washington's rule shows the limits of recent US Supreme Court decisions addressing discrimination in cases with unusual and clearly problematic facts. The court presents these cases as rare remediable aberrations, ignoring the well-documented history of racism in jury selection. The final section juxtaposes limited reforms with the contemporary prison abolitionist movement to illuminate boundaries of incremental reforms. Reforms must reflect cognizance of the extent to which racism exists at multiple levels. Reforms that do not are less likely to make change, because they are either narrow in scope or focused on discrimination by individuals.