CrimProf Blog

Levin on Decarceration and Mens Rea Reform

Benjamin Levin (University of Colorado Law School) has posted Decarceration and Default Mental States (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation. I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform. Therefore, I suggest an alternative frame through which to view mens rea reform efforts—a frame that resonates with radical structural critiques that have gained ground among activists and academics.

Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of miscalibration: To the reform proponents, criminal law, incarceration, and the institutions of the U.S. criminal system are necessary for dealing with “real criminals,” but overcriminalization, strict liability crimes, and sloppily drafted statutes cause undeserving and “otherwise law-abiding” people to suffer.

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Lott & Wang on Concealed Carry Permit Holders

John R. Lott and Rujun Wang (US Department of Justice and Crime Prevention Research Center) have posted Concealed Carry Permit Holders Across the United States: 2020 (Report from the Crime Prevention Research Center, 2020) on SSRN. Here is the abstract:

 

During President Trump’s administration, the number of concealed handgun permits has soared to over 19.48 million – a 34% increase over 2016. However, while gun sales have set records in 2020, the growth in concealed handgun permits has slowed as many states shutdown their issuance of new permits. Unlike gun ownership surveys that may be affected by people’s unwillingness to answer personal questions, concealed handgun permit data is the only really “hard data” that we have. Seventeen states no longer provide data on all the people who are legally carrying a concealed handgun because people in those states no longer need a permit to carry.

Among the findings of our report: Permits for women and minorities continue to increase at a much faster rate than for either men or whites. Alabama has the highest concealed carry rate — 28.5% of adults holding a permit, with Indiana in second with 18.7%. Five states now have over 1 million permit holders. 7.6% of American adults have permits. Outside of the restrictive states of California and New York, about 9.2% of the adult population has a permit. Permit holders continue to be extremely law-abiding.

Shrotriya & Pachauri on Witness Protection in India

Eesha Shrotriya and Shantanu Pachauri (Independent and National Law University, Delhi, Students) have posted A Proposal for a Model Witness Protection Programme: Need and Legal Ramification (NALSAR Student Law Review, 2020) on SSRN. Here is the abstract:

 

In the criminal justice system, witnesses and their testimonies play a decisive role in reaching the conclusion of the case. Witnesses, being the most crucial participants in the procedure, are often threatened or induced by the parties involved in the case to change or retract their statements. Thus, cases do not reach a truthful and rational conclusion. The judicial machinery fails the victims in their quest for justice. The rights given to witnesses and victims are quite limited in comparison to the wide range of rights of the accused. Therefore, protecting the witnesses becomes indispensable for achieving the foremost objective of the criminal justice system. The authors propose a possible model for a witness protection programme in India, keeping in mind such programmes existing across the globe.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Presidential Pardons and the Problem of Impunity Frank O. Bowman III University of Missouri School of Law Date Posted: 16 Nov 2020 [new to top ten]	545
2.	Redeeming Justice Rachel Lopez, Terrell Carter and Kempis Songster Drexel University Thomas R. Kline School of Law, Villanova University and Amistad Law Project Date Posted: 13 Nov 2020 [1st last week]	223
3.	Checks and Balances in the Criminal Law Daniel Epps Washington University in St. Louis - School of Law Date Posted: 09 Oct 2020 [2nd last week]	113
4.	Framing Individualized Sentencing for Politics and the Constitution Meghan J. Ryan Southern Methodist University - Dedman School of Law Date Posted: 11 Nov 2020 [3rd last week]	100
5.	What Do We Owe Each Other?: An Essay on Law and Society Stephen Morse University of Pennsylvania Law School Date Posted: 30 Oct 2020 [6th last week]	95
6.	Law and Neuroscience Owen D. Jones, Jeffrey D. Schall and Francis X. Shen Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology and University of Minnesota Law School Date Posted: 08 Oct 2020 [4th last week]	92
7.	Sex Crimes: First Edition Corey Rayburn Yung University of Kansas School of Law Date Posted: 04 Nov 2020 [5th last week]	89
8.	Enforcement Against the Biggest Banks David T. Zaring University of Pennsylvania - Legal Studies Department Date Posted: 10 Oct 2020 [10th last week]	66
9.	#MeToo and Mass Incarceration Aya Gruber University of Colorado Law School Date Posted: 02 Oct 2020 [7th last week]	64
10.	The Aggregation/Culpability Puzzle Larry Alexander University of San Diego School of Law Date Posted: 28 Oct 2020 [8th last week]	60

This week's criminal law/procedure arguments

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

Monday

• Van Buren v. U.S.: Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

Wednesday

• Edwards v. Vannoy: Whether the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Remote Criminal Justice Jenia Iontcheva Turner Southern Methodist University - Dedman School of Law Date Posted: 08 Oct 2020 [2nd last week]	218
2.	Police Reform Through a Power Lens Jocelyn Simonson Brooklyn Law School Date Posted: 25 Nov 2020 [new to top ten]	210
3.	New Environmental Crimes Project Data Shows That Pollution Prosecutions Plummeted During the First Two Years of the Trump Administration David M. Uhlmann University of Michigan Law School Date Posted: 14 Oct 2020	204
4.	Traffic Without the Police Jordan Blair Woods University of Arkansas - School of Law Date Posted: 19 Oct 2020 [5th last week]	157
5.	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 [6th last week]	129
6.	Forecasting Crime? Algorithmic Prediction and the Doctrine of Police Entrapment Mathew Zaia University of Ottawa - Faculty of Law Date Posted: 28 Oct 2020 [7th last week]	99
7.	Inescapable Surveillance Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 07 Nov 2020 [8th last week]	97
8.	Money and Punishment, Circa 2020 Anna VanCleave, Brian Highsmith, Judith Resnik, Jeffrey Selbin, Lisa Foster, Hannah Duncan, Stephanie Garlock and Molly Petchenik Yale University - Law School, Arthur Liman Center for Public Interest Law, Yale University - Law School, University of California, Berkeley - School of Law, Fines & Fees Justice Center, Yale University - Law School, Yale University, Law School and Yale University, Law School Date Posted: 12 Oct 2020 [9th last week]	96
9.	The Naturalized Epistemology Approach to Evidence Gabe Broughton and Brian Leiter Princeton University and University of Chicago Date Posted: 15 Oct 2020 [10th last week]	95
10.	Law and Neuroscience Owen D. Jones, Jeffrey D. Schall and Francis X. Shen Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology and University of Minnesota Law School Date Posted: 08 Oct 2020 [new to top ten]	92

Mishra & Pachauri on Compromises and Uniform Sentencing for Rape

Tweisha Mishra and Shantanu Pachauri has posted Developing a Uniform Sentencing Policy for Rape with Special Reference to the issue of Compromise (NUJS SACJ Criminal Law Review (2018)) on SSRN. Here is the abstract:

With the advent of a postmodern society that questions the established fabric of ‘culture’ and attempts to deconstruct conventional gender roles, various pertinent issues have emerged. One of these issues is forcible sexual assault on a woman without her consent, recognized as the offence of rape. It is considered to be one of the most heinous offences which can be committed against the person of an individual and demands urgent attention due to the spike in the rate of its occurrences. In this article, an attempt has been made to formulate a uniform sentencing policy for rape convicts and to analyse the ramifications of allowing out-of-court compromises, between the convict and the victim, upon such a policy. It begins by tracing the extent of sexual violence in India, defining and discussing the offence of rape as provided in the Indian Penal Code. Thereafter it examines how courts have dealt with the question of allowing rape convicts to make compromises with the victims by, for instance, agreeing to marry them and the effects such compromises have on the overall sentence of the offender. It further explores the need for maintain uniformity with regard to the sentencing policy for rape cases in light of the fundamental principles of sentencing laid down by Indian as well as international courts. The article concludes with certain recommendations about the creation and implementation of such a uniform sentencing policy in rape cases.

Resnik et al. on Gendered Violence

Judith Resnik, Susanne Baer and Marta Cartabia (Yale University - Law School, affiliation not provided to SSRN and Constitutional Court of Italy) have posted an abstract of Women, Gendered Violence, and the Construction of the 'Domestic' (Seeking Safety, Knowledge, and Security in a Troubling Environment: Global Constitutionalism 2020) on SSRN. Here is the abstract:

 

This Chapter provides background material for conversations held at the 2020 Global Constitutionalism Seminar (a Part of the Gruber Program on Global Justice and Women’s Rights) at Yale Law School.

This Chapter begins with an examination of the centuries-long assumption that gender-based violence was a “private” issue meant that legislatures, law enforcement agencies, and courts were unresponsive. It then maps how social movements and critical lawyering reframed gendered violence as one form of subordination that is in fact a marker of inequality and provides examples of national and transnational law that debate the bases, contours, and implications of rights to be free from such oppression. Having explored what affirmative obligations governments have toward their own populations to protect against gendered violence, this Chapter considers whether international refugee law, humanitarian law, and jurisdictions’ own constitutional law require offering a haven for people escaping gendered violence. Across the world, many courts have read constitutions to require that law aim to provide protection against and safety from gendered violence. Such mandates for an active state presence (often through criminalization) contrast with traditional approaches in which courts have insisted that law not interfere when acts are marked as private, intimate, or domestic. This Chapter explores the demands on the state and the repertoire of remedies deployed when governments work towards achieving substantive equality.

Efrat & Newman on Human Rights and Extradition

Asif Efrat and Abraham Newman (Interdisciplinary Center (IDC) Herzliyah and Georgetown University) have posted Defending Core Values: Human Rights and the Extradition of Fugitives (Journal of Peace Research 57:4 (2020)) on SSRN. Here is the abstract:

 

Are states willing to overlook human rights violations to reap the fruits of international cooperation? Existing research suggests that this is often the case: Security, diplomatic, or commercial gains may trump human rights abuse by partners. We argue, however, that criminal-justice cooperation might be obstructed when it undermines core values of individual freedoms and human rights, since the breach of these values exposes the cooperating state to domestic political resistance and backlash. To test our argument, we examine extradition: a critical tool for enforcing criminal laws across borders, but one that potentially threatens the rights of surrendered persons, who could face physical abuse, unfair trial, or excessive punishment by the foreign legal system. We find support for our theoretical expectation through statistical analysis of the surrender of fugitives within the European Union as well as surrenders to the United States: greater respect for human rights correlates with the surrender of fewer persons. A case study of Britain confirms that human-rights concerns may affect the willingness to extradite. Our findings have important implications for debates on the relationship between human rights and foreign policy as well as the fight against transnational crime.

Morse on Hirstein et al. on Responsibility and Executive Function

Stephen Morse (University of Pennsylvania Law School) has posted Is Executive Function The Universal Acid? on SSRN. Here is the abstract:

 

This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to our understanding of it. Then it addresses moral and legal responsibility generally, and specific doctrines. Executive function is seldom found to be the most perspicuous approach to any of the general or specific moral and legal questions.

Elliott on The Law Enforcement Officers' Bill of Rights

Richard DeShay Elliott (Johns Hopkins University- Department of Political Science) has posted Impact of the Law Enforcement Officers’ Bill of Rights on Police Transparency & Accountability (Southern Political Science Association 2021. Accepted October 20, 2020) on SSRN. Here is the abstract:

 

The United States, home to 5% of the world’s population & 25% of the world’s incarcerated population, is the largest hotspot of mass incarceration in human history. Many factors have contributed to rising incarceration rates over the past 50 years, including the War on Drugs and the 1994 crime bill. One piece of legislation with impact on policing in the United States is the Law Enforcement Officer’s Bill of Rights (LEOBOR), which serves to minimize accountability and transparency within police departments by granting rights to police officers that aren't granted to other public or private employees, such as interdepartmental investigations and classified personnel files. LEOBOR is state policy in the states where Freddie Gray (Maryland), Sandra Bland (Texas), Breonna Taylor (Kentucky), & George Floyd (Minnesota) were murdered by police and where Rodney King (California) was beaten on tape, and this legislation has a substantial impact on police investigations and discipline. There has been very little academic study on this legislation and its impact.

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Chaudhary on Liability and AI

Gyandeep Chaudhary (Indian Law Institute) has posted Artificial Intelligence: the Liability Paradox (ILI Law Review, 2020) on SSRN. Here is the abstract:

 

In this modern era, technology has evolved rapidly, and significant technological application of Artificial Intelligence (AI) has become an integral aspect of human nature. A significant shift has taken place in human life. The issue of ascertaining liability, civil and criminal, for damages or losses resulting from its activities becomes a matter of priority for AI, which exercises control over itself in various degrees. The critical concern is that either national or international law does not consider AI as a subject of law, implying that AI can not be held directly responsible for its actions and damage caused subsequently. Moreover, the issue of liability assessment also presents a complex question of whether or not AI should be granted legal personality. Given the preceding, a question naturally arises: who is responsible for the damage caused by the actions of AI?

Nighoskar on The Insanity Defense in Indian Criminal Law

Yashodhan Nighoskar (OP Jindal Global University, Jindal Global Law School (JGLS)) has posted Widening the Defence of Insanity in Indian Criminal Law (American Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

This paper examines the present laws related to Insanity in IPC and addresses the needs to amend it. The human mind is a paramount and a remarkable gift to mankind and plays a primary role in all human actions. The mental faculty of a person plays a significant role for a person when performing any human action. In the Indian Criminal Law, the subject of insanity and criminal liability still remains an unsolved obstacle for the lawmakers.

Davis et al. on Pretext Calls in Sexual Assault Investigations

Deborah Davis, Richard A. Leo, Tyler Livingston and Peter Rerick (University of Nevada, Reno, University of San Francisco, University of Nevada, Reno and University of Nevada, Reno) have posted Interrogation and the Sexual Assault Suspect: On the Synergy between Pretext Caller and Police Interrogator (Nadine Deslauriers-Varin & Craig Bennell, eds., Criminal Investigations of Sexual Offenses: Investigative Techniques and Operational Challenges (Springer, Forthcoming)) on SSRN. Here is the abstract:

 

This chapter reviews the attempts of police to elicit confessions to child and adult sexual assault through standard police interrogation and through use of alleged victims or associates of alleged victim as surrogate interrogators. Specifically, we describe the use of “pretext calls” (otherwise known as “cold,” “controlled,” “one party consent,” or “confrontational” calls) made by victims or their associates at the behest of police. We describe commonalities and differences in the strategies employed by police interrogators and pretext callers, and the synergy between them. We further address reactions of suspects to each, as well as reactions of observers to admissions made in each context.

Wexler on Therapeutic Jurisprudence

David B. Wexler (University of Puerto Rico - School of Law) has posted The DNA of Therapeutic Jurisprudence on SSRN. Here is the abstract:

 

This is the short opening chapter of the book The Methodology and Practice of Therapeutic Jurisprudence. My view is that therapeutic jurisprudence (TJ) is really itself a method-- a method of thinking--and I aim here to lay out its essential conceptual framework. I do so by giving a quick look at its birth and development, as well as the development of its vocabulary. TJ adheres to viewing the law as a potential therapeutic (or anti-therapeutic ) agent, and looks at the law as consisting of rules of law, legal procedures, and the roles of legal actors (lawyers, judges, others working within a legal framework) Over time, the rules and procedures have sometimes been referred to the " legal structure" or "bottlers", and the roles and behaviors of legal actors were sometimes referred to as the "liquid" or "wine." These terms and metaphors remain in use, but, in professional settings, TJ now often speaks of the Therapeutic Design of the Law and the Therapeutic Application of the Law. Hence, the DNA of TJ. The chapter can be used in many settings and classes to give students an overview of TJ and its method of thinking, thereby allowing them to "see" TJ issues in many settings--their general classes, legal profession classes, clinical offerings, and later in practice.

Perlin on Therapeutic Jurisprudence in the Classroom

Michael L. Perlin (New York Law School) has posted 'A Self-Ordained Professor’s Tongue': Therapeutic Jurisprudence in the Classroom (International Society for Therapeutic Jurisprudence (ISTJ), Occasional Papers Series, No. 1) on SSRN. Here is the abstract:

 

This short paper is the first in the Occasional Papers Series just inaugurated by the International Society for Therapeutic Jurisprudence (ISTJ) (see intltj.com). In it, I report on results of surveys I have done via the TJ LISTSERV, seeking information about what therapeutic jurisprudence courses are being offered (and have been offered in the past). The survey shows (1) that there is a remarkably wide range of such courses, (2) that these courses are being offered not just in law schools, but also in graduate schools and, on some cases, to undergraduates, and (3) that these course are being offered all over the world. The courses include ones in which therapeutic jurisprudence is in the title, where it is the focus of the course, where it is a specific module in the course, and where it is mentioned regularly in the course.

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Ho on The Mental Element in Equitable Accessory Liability

Lusina Ho (The University of Hong Kong - Faculty of Law) has posted The Mental Element in Equitable Accessory Liability (Current Legal Problems 2020 (Forthcoming)) on SSRN. Here is the abstract:

 

There has been heated debate over the test of dishonesty since it was first laid down in Royal Brunei Airlines v Tan. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust, that is, assistants endorse or accept their causal role in bringing it about. Three implications follow. First, the mental element should be fixed at the minimum level necessary to reflect endorsement rather than varying by the degree of causal contribution to the primary wrong. Second, the test of neither dishonesty nor knowledge fully captures the requisite mental element for endorsement. Third, a test framed in terms of intention and belief concerning the core elements of a breach would better identify the mental element of accessory liability in equity. This reformulated test would add much-needed transparency to mental element determination and coherence with accessory liability in criminal law and contract law.

Perlin & Lynch on Neuroscience, Therapeutic Jurisprudence, and Juvenile Sentencing

Michael L. Perlin and Alison Lynch (New York Law School and Mental Disability Law & Policy Associates) have posted 'Some Mother's Child Has Gone Astray': Neuroscientific Approaches to a Therapeutic Jurisprudence Model of Juvenile Sentencing on SSRN. Here is the abstract:

 

There is a robust body of evidence that tells us that the juvenile brain is not fully developed by age 18, and this evidence should and does raise important questions about the sentencing of juveniles in criminal cases. This evidence, though, must be considered in the context of public opinion (about certain juvenile crimes that have been subject to saturation publicity) in the context of judges’ decisionmaking (where such judges do not want to be perceived as “soft on crime”). The conflict between what we now know and what (false) “ordinary common sense” demands (in the way of enhanced punishments) flies squarely in the face of therapeutic jurisprudence precepts. If the legal process is to seek to maximize psychological well-being and if it is to coincide with an “ethic of care,” then, it is necessary for those involved in the criminal justice system to speak publicly about this topic, and to “call out” those – be they elected politicians, editorial writers and commentators in the conservative media, or judges – who urge retributive and punitive sentences for adolescents and children.

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Paganelli on Adam Smith on Crime and Punishment

Maria Pia Paganelli (Trinity University) has posted Crime and Punishment: Adam Smith’s Theory of Sentimental Law and Economics (Coauthored with Fabrizio Simon (Universita' di Palermo), Journal of the History of Economic Thought, Forthcoming) on SSRN. Here is the abstract:

 

For Adam Smith a crime is not the result of a rational calculation of loss and gain, but the consequence of envy and a vain desire to parade wealth to attract the approbation of others, combined with a natural systematic bias in overestimating the probability of success. Similarly, Smith does not conceive of legal sanctions as a rational deterrent, but as deriving from the feeling of resentment. While the prevailing approach of the eighteenth century is a rational explanation of crime and a utilitarian use of punishment, Adam Smith instead builds his theory of criminal behavior and legal prosecution consistently on the sentiments. A well-functioning legal system is thus an unintended consequence of our desire to bring justice to the individual person, not the result of a rational calculation to promote the public good, just like a well-functioning economic system is the unintended consequence of our desire to better our own condition, not the result of a rational calculation to promote public good.

Holzman et al. on Spillover Effect of Corporate Accounting Misconduct

Eric Holzman, Brian P. Miller and Brian Williams (The Ohio State University - Department of Accounting & Management Information Systems, Indiana University - Kelley School of Business - Department of Accounting and Indiana University - Kelley School of Business - Department of Accounting) have posted The Local Spillover Effect of Corporate Accounting Misconduct: Evidence from City Crime Rates (Contemporary Accounting Research, Forthcoming) on SSRN. Here is the abstract:

 

This study documents a spillover effect of accounting fraud by showing that after the revelation of accounting misconduct, there is an increase in financially motivated neighborhood crime (robberies, thefts, etc.) in the cities where these misconduct firms are located. We find that more visible accounting frauds (e.g., greater media attention and larger stock price declines) are more strongly associated with a future increase in financially motivated neighborhood crime. Further, we predict that adverse shocks stemming from the fraud put pressure on local communities leading to greater incentives and rationalization for individuals to commit financially motivated crime. Consistent with our predictions, we find that the association between fraud revelation and increased future financially motivated crime is strongest when local city-wide unemployment increases, where local job markets are shallower, and where local income inequality is high.