CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Banishing ‘Sex Offenders': How Meaningless Language Makes Bad Law Guy Padraic Hamilton-Smith Mitchell Hamline School of Law Date Posted: 03 Dec 2020	436
2.	The Legality of Presidential Self-Pardons Paul J. Larkin, Jr. The Heritage Foundation Date Posted: 09 Dec 2020	279
3.	Police Prosecutions and Punitive Instincts Kate Levine Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 16 Nov 2020	226
4.	Federal (De)Funding of Local Police Roger Michalski and Stephen Rushin University of Oklahoma - College of Law and Loyola University Chicago School of Law Date Posted: 19 Jan 2021 [6th last week]	137
5.	Digital Age Samaritans Zachary D. Kaufman University of Houston Law Center Date Posted: 02 Dec 2020 [4th last week]	124
6.	Invisible Prisons Eve Hanan University of Nevada, Las Vegas, William S. Boyd School of Law Date Posted: 07 Dec 2020 [5th last week]	117
7.	Permission and Purpose: Does a Person Violate the Federal Computer Fraud Statute by Accessing a Computer with Authorization but for an Improper Purpose? Brooks Holland Gonzaga University School of Law Date Posted: 02 Dec 2020	109
8.	'I See What Is Right and Approve, But I Do What Is Wrong': Psychopathy and Punishment in the Context of Racial Bias in the Age of Neuroimaging Alison Lynch and Michael L. Perlin Mental Disability Law & Policy Associates and New York Law School Date Posted: 23 Dec 2020 [10th last week]	99
9.	Unpunishable Criminals Mihailis Diamantis University of Iowa - College of Law Date Posted: 02 Dec 2020	93
10.	Knowledge, Belief, and Moral Psychology John Mikhail Georgetown University Law Center Date Posted: 28 Dec 2020 [new to top ten]	85

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Fourth Amendment Limits of Internet Content Preservation Orin S. Kerr University of California, Berkeley School of Law Date Posted: 18 Dec 2020	800
2.	Movement Law Amna A. Akbar, Sameer M. Ashar and Jocelyn Simonson Ohio State University (OSU) - Michael E. Moritz College of Law, University of California, Irvine School of Law and Brooklyn Law School Date Posted: 23 Nov 2020	650
3.	Policing and 'Bluelining' Aya Gruber University of Colorado Law School Date Posted: 04 Jan 2021 [4th last week]	291
4.	The Stress of Injustice: Public Defenders and the Frontline of American Inequality Valerio Baćak, Sarah Lageson and Kathleen Powell Rutgers, The State University of New Jersey - School of Criminal Justice, Rutgers, The State University of New Jersey - School of Criminal Justice and Drexel University - Department of Criminology and Justice Studies Date Posted: 19 Jan 2021 [new to top ten]	267
5.	Police Prosecutions and Punitive Instincts Kate Levine Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 16 Nov 2020	226
6.	Disbanding Police Agencies Anthony O'Rourke, Rick Su and Guyora Binder University at Buffalo Law School, University of North Carolina School of Law and University at Buffalo Law School Date Posted: 02 Dec 2020 [7th last week]	197
7.	Misuse of the 498-A IPC on the Persons Suffering From Disabilities- (An Overview on the Provisions of 498-A I.P.C, & Disability Act in India) yogesh mahajan Alumini of LC-1, Faculty Of Law, University Of Delhi Date Posted: 05 Jan 2021 [9th last week]	127
8.	COVID-19 Sewage Testing as a Police Surveillance Infrastructure Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 07 Dec 2020 [10th last week]	103
9.	How Federalism Built the FBI, Sustained Local Police, and Left Out the States Daniel C. Richman and Sarah Seo Columbia Law School and Columbia Law School Date Posted: 30 Nov 2020 [new to top ten]	93
10.	Unpunishable Criminals Mihailis Diamantis University of Iowa - College of Law Date Posted: 02 Dec 2020 [new to top ten]	93

Adelman on Mass Incarceration

Lynn Adelman (U.S. District Court - Eastern District of WI) has posted Is Mass Incarceration Here to Stay? (Raritan: A Quarterly Review, 2020) on SSRN. Here is the abstract:

 

This article argues that the number of people imprisoned in the United States is so large and that policymakers’ concerns about being perceived as soft on crime are so significant that it is very possible that mass incarceration will be with us for a very long time. The article discusses some of the reasons that have been put forward as to why the United States has imprisoned so many people in the last 50 years and the harms that mass incarceration has brought about. The article also explores some of the proposals that scholars and others have offered to reduce the number of people imprisoned. Ultimately, however, the article questions whether there is sufficient will to address the enormity of the problem.

Bronsteen on Localized Drug Depenalization

John Bronsteen (Loyola University Chicago School of Law) has posted Would 'Hamsterdam' Work? Drug Depenalization in The Wire and in Real Life (University of Chicago Legal Forum, Vol. 2018, No. 1, 2019) on SSRN. Here is the abstract:

 

The television show The Wire depicts a plan called “Hamsterdam” in which police let people sell drugs in isolated places, and only those places, without fear of arrest. Based on limited but decent empirical evidence, we can make educated guesses about what would happen if that were tried in real life. Indeed, Swiss police tried something remarkably similar in the 1980s. More generally, the results of various forms of drug legalization, depenalization, and decriminalization in Europe — such as in Portugal, which has transferred the state’s method of dealing with drug use (including heroin and cocaine) from the criminal justice system to a civil administrative system since 2001 — shed light on the likely strengths and weaknesses of Hamsterdam-like efforts. The Wire seems to get a lot right, including some of Hamsterdam’s successes and Hamsterdam’s political unsustainability. Unfortunately, The Wire might actually understate how hard it would be, even if there were no political impediments, to make sweeping improvements in real-world drug policy via Hamsterdam-like efforts.

Doyle on Justice Safety Centers

James M Doyle has posted Innocence and Prevention: Could We Build Justice Safety Centers? (1 Wrongful Conviction Law Review 253 (2020)) on SSRN. Here is the abstract:

 

Some contemporary writers argue that wrongful convictions represent system failures in a complex criminal justice system. Currently explorations are underway into whether pursuit of non-blaming, all-stakeholders, forward-looking “sentinel event” reviews focused on lowering risk rather than laying blame can improve safety from wrongful convictions. This article reviews the underlying theory of safety-based practices and sketches one model of how work on preventing wrongful convictions might be institutionalized: made a part of a new culture of continuous improvement that lowers the risk of future wrongful convictions and offers a degree of restorative justice to the victims of errors.

Osler on Meyler on Pardoning

Mark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted Review Essay: Theaters of Pardoning (Criminal Justice Ethics (Forthcoming) on SSRN. Here is the abstract:

 

I loved reading Bernadette Meyler’s Theaters of Pardoning, largely because of the way she feasts at the well-laden table of 17th century British theater as she discerns themes of mercy by the powerful. It is also exactly the right time to revisit clemency’s trajectory through Western civilization, as we rebound from a practitioner, Donald Trump, who used it as an extension of his own ego. In the end, though, the book was a great meal that still left me hungry, in that it never really tried to connect clemency’s historical path to the very real challenges we face today.

Krishnamurthi on Abolishing Criminal Confessions

Guha Krishnamurthi (South Texas College of Law Houston) has posted The Case for the Abolition of Criminal Confessions on SSRN. Here is the abstract:

 

Confessions are often considered the “gold standard” of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendant’s due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.

This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is both sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, this overvaluation means both that innocent defendants are systemically pressured into proclaiming their guilt and that juries are so swayed by it — even in light of countervailing evidence — that they render wrongful convictions. Indeed, as practice and empirical evidence demonstrate, this is not merely a theoretical possibility: false confessions and resulting miscarriages of injustice occur with disturbing frequency.

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Monea on The Fall of Grand Juries

Nino Monea has posted The Fall of Grand Juries (Northeastern University Law Review, Vol. 12, No. 2, 2020) on SSRN. Here is the abstract:

 

Grand juries once played a preeminent role in American civic life. Today, they do little more than ratify indictments sought by prosecutors. How did this happen? This Article explores that question, primarily relying on period newspapers and constitutional convention transcripts. It looks at the pervasive role grand juries held and the anti-grand jury movement that arose in the mid-19th century. To understand the anti-grand jury fervor, this Article examines five explanations of why grand juries fell from grace: (1) they failed to protect the innocent or punish the guilty, (2) they facilitated anonymous character assassinations, (3) they were too expensive and cumbersome for a tax-conscious society, (4) as government professionalized, there was less need for citizen panels, and (5) urbanization meant that grand juries could not as easily represent their communities.

Robinson on Sticky Colonial Criminal Laws

Tracy Robinson (The University of the West Indies, Mona) has posted Sticky Colonial Criminal Laws ((2020) 75 University of Miami Review Caveat 58) on SSRN. Here is the abstract:

 

This short article is a response to Anneke Meerkotter’s article, “Litigating to Protect the Rights of Poor and Marginalized Groups in Urban Spaces”. It analyses the stickiness of colonial criminal laws in the context of the Caribbean states that were once a part of the British empire. The article explains the stickiness of Anglo-Caribbean colonial criminal laws, first, by looking at law’s prominence in the colonial project and state formation in the British Caribbean and its availability to be claimed by the colonized as their own. Secondly, it point to ways that globalization helps to structure the contemporary meanings of colonial criminal laws in geopolitical terms — raising the stakes for some legal change, more so than others, and raising the stakes for opposition to such change. Finally, the article suggests that some colonial criminal laws, especially vagrancy, escape desuetude because their vagueness and wide enforcement discretion produce an elasticity that makes them a flexible and almost limitless legal resource for policing “undesirables”.

Richmond on AI, Machine Learning, and International Criminal Investigations

Karen McGregor Richmond (iCourts - Danish National Research Foundation Centre of Excellence in International Law) has posted AI, Machine Learning, and International Criminal Investigations: The Lessons From Forensic Science (iCourts Working Paper Series, No. 222) on SSRN. Here is the abstract:

 

The evolving field of machine learning and artificial intelligence is frequently presented as a positively disruptive branch of data science whose expansion allows for improvements in the speed, efficiency, and reliability of decision-making, and whose potential is impacting across diverse zones of human activity. A particular focus for development is within the criminal justice sector, and more particularly the field of international criminal justice, where AI is presented as a means to filter evidence from digital media, to perform visual analyses of satellite data, or to conduct textual analyses of judicial reporting datasets. Nonetheless, for all of its myriad potentials, the deployment of forensic machine learning and AI may also generate seemingly insoluble challenges. The critical discourse attendant upon the expansion of automated decision-making, and its social and legal consequences, resolves around two interpenetrating issues; specifically, algorithmic bias, and algorithmic opacity, the latter phenomena being the focus of this study.

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Wright on Reducing Recidivism

Robert E. Wright (American Institute for Economic Research) has posted Reducing Recidivism on SSRN. Here is the abstract:

 

As evidenced by high rates of recidivism, America’s criminal justice system fails, at great human and fiscal cost, to rehabilitate fully many of the persons entrusted to its care. This paper presents a relative cost-benefit model to explain why people engage in criminal activity and uses it to motivate a discussion of the major policy approaches to recidivism reduction. Most approaches have failed but two programs, the DOE Fund and PEP, have proven extremely effective, the first by employing former convicts in starter jobs and the latter by teaching inmates about entrepreneurship and general business skills and mentoring them after release. Rather than simply scaling those programs, however, it may be wiser to encourage further competition and innovation in the field by paying NGOs each week they manage to keep the formerly imprisoned persons in their charge alive and out of the criminal justice system. Such a policy would encourage desistance, or decreasing the frequency and severity of criminal activity, a more nuanced measure of harm reduction than the binary concept of recidivism typically used to evaluate program success.

Meares & Prowse on Policing as a Public Good

Tracey L. Meares and Gwen Prowse (Yale University - Law School and Yale University) have posted Policing as a Public Good: Reflecting on the Term 'To Protect and Serve' As Dialogues of Abolition (University of Florida Levin College of Law Research Paper Forthcoming) on SSRN. Here is the abstract:

 

This Essay is based on a lecture that was to be delivered in person in March 2020 but was cancelled as a result of the initial ravages of the COVID-19 pandemic. That a discussion of policing in the United States was cancelled because of what may well turn out to be the most significant public health crisis of this decade, if not this century, is important as these two subjects are intimately related. Sociologists and others have long noted that crime and especially violent crime, is concentrated in places. Research is also clear that the state’s primary response to concentrated violence in communities has been to send police and other apparatus of the criminal legal system to respond to crime rather than to provide state supports and other resources better aimed at preventing the circumstances that render certain neighborhoods susceptible to violence.

The goal of research described here is to investigate how ordinary people discuss a reconceptualization of policing in ways that respond to the current moment.

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Michalski & Rushin on Federal (De)Funding of Local Police

Roger Michalski and Stephen Rushin (University of Oklahoma - College of Law and Loyola University Chicago School of Law) have posted Federal (De)Funding of Local Police on SSRN. Here is the abstract:

 

Across the political spectrum, politicians, commentators, and activists frequently invoke federal funding as a lever to induce changes in local police behavior. But can federal funding function as an effective policy lever at the local level? Is federal funding or the threat of defunding a sufficiently strong tool to effectuate deeply contentious policy goals over local opposition?

This Essay conducts an empirical examination of federal funding for local and state police agencies in the United States. It finds that the federal government remains a relatively minor contributor to local police budgets. We find that federal funding only reaches a minority of local police agencies. Similarly, federal funds account, on average, for a relatively small percentage of what the typical American municipality spends on policing each year.

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Berman & Kreit on Marijuana Reform as Effective Criminal Justice Reform

Douglas A. Berman and Alex Kreit (Ohio State University (OSU) - Michael E. Moritz College of Law and Northern Kentucky University - Salmon P. Chase College of Law) have posted Ensuring Marijuana Reform Is Effective Criminal Justice Reform (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

In less than a decade, marijuana legalization has gone from unthinkable to seemingly unstoppable. This essay — written for a special issue on improving Arizona’s criminal justice system — discusses how Arizona should best advance marijuana legalization so that it can significantly improve Arizona’s criminal justice system. Now that Arizona has legalized marijuana via ballot initiative, we do not wade too deeply into the arguments for and against legalization or the criminal justice impact inherent in the repeal of prohibition (such as reductions in marijuana arrests and sentences). Instead, we focus on steps that Arizona policymakers and advocates who are interested in improving the criminal justice system can take to ensure that legalization best advances this goal. First, we set the stage in Part I with a brief history of marijuana prohibition, its role in criminal enforcement today, and the movement to enact state legalization laws. In Part II, we turn our attention to Arizona, beginning with a description of marijuana reform efforts in Arizona and key facets of the Smart and Safe Arizona Act. We then provide recommendations for policymakers and other concerned parties about how to ensure modern marijuana reforms in Arizona (and elsewhere) can and should help build a reform infrastructure that could not only ensure record relief to redress past marijuana convictions but also address broader criminal justice issues that historically intersect with marijuana prohibition.

Bacak et al. on Stress and Public Defenders

Valerio Baćak, Sarah Lageson and Kathleen Powell (Rutgers, The State University of New Jersey - School of Criminal Justice, Rutgers, The State University of New Jersey - School of Criminal Justice and Drexel University - Department of Criminology and Justice Studies) have posted The Stress of Injustice: Public Defenders and the Frontline of American Inequality on SSRN. Here is the abstract:

 

Fairness and due process in the criminal justice system are all but unattainable without effective legal representation of indigent defendants, yet we know little about attorneys who do this critical work—public defenders. Using semi-structured interviews, this study investigated occupational stress in a sample of 87 public defenders across the United States. We show how the intense and varied chronic stressors experienced at work originate in what we define as the stress of injustice: the social and psychological demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged. Our findings are centered around three shifts in American criminal justice that manifest in the stress of injustice: penal excess, divestment in indigent defense, and the criminalization of mental illness. Working within these structural constraints makes public defenders highly vulnerable to chronic stress and can have profound implications for their ability to safeguard the rights of poor defendants.

Guerra & Nilssen on Recurring Crime and Adjudication Errors

Alice Guerra and Tore Nilssen (University of Bologna - Department of Economics and University of Oslo - Department of Economics) have posted Recurring Crime and Adjudication Errors on SSRN. Here is the abstract:

 

We develop an economic model of crime that incorporates both crime recurrence and adjudication errors. We consider an infinite-horizon model where offenders are habitual (repeat crimes whenever free). If apprehended, criminals could be wrongfully acquitted, and innocent persons could be wrongfully convicted. The key finding is that greater adjudication errors, of either types, equally increase social costs; but, at the margin, due to crime recurrence, one further wrongful acquittal yields greater social costs than an additional wrongful conviction.

Bagaric on Reducing the Discriminatory Impact of Sentencing

Mirko Bagaric, Peter Isham, Jennifer Svilar and Theo Alexander (Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School, Independent, Independent and Deakin University, Geelong, Australia - Deakin Law School) have posted Less Prison Time Matters: A Roadmap to Reducing the Discriminatory Impact of the Sentencing System Against African Americans and Indigenous Australians (Georgia State University Law Review, Vol. 37, No. 1, 2021) on SSRN. Here is the abstract:

 

The criminal justice system discriminates against African Americans. There are a number of stages of the criminal justice process. Sentencing is the sharp end of the system because this is where the community acts in its most coercive manner by intentionally inflecting hardships on offenders. African Americans comprise 40% of the incarcerated population, yet only 13% of the population. The overrepresentation of African Americans in prisons is repugnant. Despite this, lawmakers for decades have been unable or unwilling to implement reforms which ameliorate the problem. This is no longer politically or socially tolerable in light of the groundswell of support for the Black Lives Matter movement following the killing of George Floyd. The Article proposes a number of principled reforms that will immediately reduce the incarceration levels of African Americans and assist to overcome the systemic biases against this group.

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Miller on Defending Speech Crimes

Judith P Miller (University of Chicago - Law School) has posted Defending Speech Crimes (University of Chicago Legal Forum, 2020) on SSRN. Here is the abstract:

 

The First Amendment is supposed to provide important protections against criminal prosecutions for speech crimes. In practice, however, those protections are inadequate: in a world of vanishing trials, criminal defendants lack meaningful opportunities to litigate often fact-bound First Amendment questions. Through the lens of prosecutions for false speech, this article proposes refocusing First Amendment protections in criminal cases on criminal procedure rather than substantive questions about what the First Amendment protects. It suggests two procedural reforms—revitalizing the indictment and unanimity requirements—to help make the First Amendment’s ostensible protections more of a reality for criminal defendants.

Celeste & Thompson-Dudiak on The Marijuana Classification Under the Controlled Substances Act

Mary Celeste and Melia Thompson-Dudiak (California Western School of Law and Melia Thompson Dudiak) have posted Has the Marijuana Classification Under the Controlled Substances Act Outlived Its Definition? (Connecticut Public Interest Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

Under the Control Substances Act (“CSA”), marijuana is currently scheduled as an “I” drug. In a classification of “V” schedules, “I” is considered the most dangerous, because it is deemed to have a “high potential for abuse” and “no medical value.” It ranks alongside other substances such as heroine and phencyclidine (“PCP”), thereby signifying that the federal government considers marijuana more dangerous than cocaine and Xanax. According to the CSA, any violation of a substance listed as a schedule “I” drug is subject to the harshest penalties. Accordingly, using, manufacturing, importing, or distributing marijuana could result in various penalties. Individuals involved in marijuana businesses can receive up to five years in prison and simple possession with no intent to distribute is a misdemeanor with fines ranging from $250,000 to $1 million dollars or punishable by up to one year in prison and a minimum fine of $1,000.

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Dolovich on Mass Incarceration and COVID

Sharon Dolovich (University of California, Los Angeles - School of Law) has posted Mass Incarceration, Meet COVID-19 (University of Chicago Law Review Online (2020)) on SSRN. Here is the abstract:

 

With the global pandemic still unfolding, we are only beginning to make sense of the overall impact of COVID-19 on the people who live and work inside American prisons and jails, and of what effect, if any, the pandemic will have on the nation’s continued commitment to mass incarceration under unduly harsh conditions. In this Essay, I take stock of where things now stand. I also consider how we got to this point, and how penal policy would need to change if we are to prevent another round of needless suffering and death when the next pandemic hits. Part I explains why the incarcerated face an elevated risk of infection and potentially fatal complications from COVID-19. Part II describes the measures various corrections administrators took at the start of the pandemic to try to limit viral spread inside jails and prisons, and why, however well-intentioned, these measures were insufficient to bring the virus under control.

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