CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Profiling Insurrection: Characterizing Collective Action Using Mobile Device Data David Van Dijcke and Austin L. Wright University of Michigan, Ann Arbor and University of Chicago - Harris School of Public Policy Date Posted: 01 Feb 2021	737
2.	Capitol Offense: Is Donald Trump Guilty of Inciting a Riot at the Capitol? Michael Conklin Angelo State University Date Posted: 27 Jan 2021	421
3.	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	220
4.	'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	131
5.	The U.S. Sentencing Commission’s Recidivism Studies: Myopic, Misleading, and Doubling Down on Imprisonment Nora V. Demleitner Washington and Lee University Date Posted: 23 Jan 2021	121
6.	Knowledge, Belief, and Moral Psychology John Mikhail Georgetown University Law Center Date Posted: 28 Dec 2020	100
7.	Undemocratic Crimes Paul H. Robinson and Jonathan Wilt University of Pennsylvania Law School and United States District Court for the Eastern District of Pennsylvania Date Posted: 30 Jan 2021 [10th last week]	95
8.	In Defense of Moral Credibility Paul H. Robinson and Lindsay Holcomb University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct Date Posted: 01 Feb 2021 [7th last week]	86
9.	The Litigation Landscape of Fraternity and Sorority Hazing: Criminal and Civil Liability Gregory Scott Parks and Elizabeth Grindell Wake Forest University - School of Law and Wake Forest University, School of Law, Students Date Posted: 11 Jan 2021 [8th last week]	81
10.	Defining Crimes in a Global Age: Criminalization as a Transnational Legal Process Ely Aharonson and Gregory Shaffer Haifa University - Faculty of Law and University of California, Irvine School of Law Date Posted: 15 Dec 2020 [9th last week]	73

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	833
2.	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	420
3.	Policing and 'Bluelining' Aya Gruber University of Colorado Law School Date Posted: 04 Jan 2021	333
4.	Separating Crime from Punishment: What India’s Prisons Might Tell Us about Its Criminal Process Abhinav Sekhri Delhi High Court Date Posted: 04 Feb 2021	216
5.	Risk Assessment Tools in Criminal Justice: Is There a Need for Such Tools in Europe and Would Their Use Comply with European Data Protection Law? Eleftherios Chelioudakis affiliation not provided to SSRN Date Posted: 03 Feb 2021	207
6.	Can Prosecutors Help To End Mass Incarceration? Rachel E. Barkow New York University School of Law Date Posted: 06 Feb 2021	202
7.	Bargained Justice: The Rise of False Testimony for False Pleas Andrew Pardieck, Vanessa Edkins and Lucian E. Dervan Southern Illinois University School of Law, Florida Institute of Technology and Belmont University School of Law Date Posted: 29 Jan 2021 [8th last week]	159
8.	Social Norms in Fourth Amendment Law Matthew Tokson and Ari Ezra Waldman University of Utah - S.J. Quinney College of Law and Northeastern University Date Posted: 09 Feb 2021 [10th last week]	138
9.	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 [7th last week]	133
10.	EU-US Negotiations on Law Enforcement Access to Data: Divergences, Challenges and EU Law Procedures and Options Theodore Christakis and Fabien Terpan Institut Universitaire de France and Sciences Po Grenoble - Université Grenoble Alpes Date Posted: 03 Feb 2021 [new to top ten]	125

Silver on Electronic Transactional Information

Zachary Silver has posted Katz in the Cradle: The Second Justice Harlan and Reasonable Expectations of Privacy in Electronic Transactional Information (Cardozo Law Review, Vol. 41, No. 2, p. 761, 2019) on SSRN. Here is the abstract:

The U.S. Supreme Court's decision in Carpenter v. United States recognizes that information's sensitivity may serve as the basis for a person's reasonable expectation of privacy in that information -- and thus its protection under the Fourth Amendment -- notwithstanding the Third-Party Doctrine. But an examination of the Court's rationale shows that the majority merely evaluated the case's factual context by balancing the government's burden of obtaining a warrant against the petitioner's privacy interests; and, in doing so, it placed significant weight on whether the government's warrantless acquisition of location data fell within the "mischief which gave [the Fourth Amendment] birth."

More interesting, however, is what the Court's choice to use such a balancing test in the first place reveals.

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Stevenson & Mayson on Pretrial Detention and the Value of Liberty

Megan T. Stevenson and Sandra G. Mayson (University of Virginia School of Law and University of Georgia School of Law) have posted Pretrial Detention and the Value of Liberty on SSRN. Here is the abstract:

 

How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial detention to the truly dangerous—and which has looked to algorithmic risk assessments to quantify danger—has brought this question to the fore. Constitutional doctrine authorizes pretrial detention when the government’s interest in safety “outweighs” an individual’s interest in liberty, but it does not specify how to balance these goods. If detaining ten presumptively innocent people for three months is projected to prevent one robbery, is it worth it?

This Article confronts the question of what degree of risk justifies pretrial preventive detention if one takes the consequentialist approach of current law seriously.

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Sangero on False Convictions Based on Eyewitnesses Misidentifications

Boaz Sangero (Sapir Academic College) has posted Applying the STAMP Safety Model to Prevent False Convictions Based on Eyewitness Misidentifications (Albany Law Review, Vol. 83, 2020) on SSRN. Here is the abstract:

 

In many criminal law systems, eyewitness identification of a suspect is sufficient to establish that they are the perpetrator of the crime in question, without any need for additional corroborating evidence. But this lofty legal status stands in contrast to the undisputed assertion in the professional literature that an erroneous eyewitness identification is far from rare, with many scholars holding it to be the most common cause of false convictions. On this background, this Article offers ways of reducing the rate of false convictions based on eyewitness misidentifications. The Article argues for the creation and application of a safety theory in the criminal justice system, specifically regarding eyewitness identifications. Therefore, after the Article connects between the modern theory of safety, which is well developed in other areas of our life, and the new theory of safety from false convictions; and after a deep discussion of one of the most serious hazards in criminal law — the hazard of false convictions based on eyewitness misidentifications — a specific safety model shall be developed, based on these discussions and on the innovative STAMP safety model. The substance of the suggested rules is based on both the psychological research and the legal literature. The high rate of false convictions is not an inevitable fate.

Fidell et al. on Supreme Court Jurisdiction over Courts-martial

Eugene Fidell, Brenner Fissell and Philip D. Cave (Yale Law School, Hofstra University - Maurice A. Deane School of Law and National Institute of Military Justice) have posted Equal Supreme Court Access For Military Personnel: An Overdue Reform (131 Yale Law Journal Forum __, Forthcoming) on SSRN. Here is the abstract:

 

While one might think that every criminal defendant in the United States has the opportunity to eventually appeal their conviction to the Supreme Court, Congress has largely blocked the path of perhaps the most deserving category of defendants: military personnel convicted at courts-martial. This is because under the 1983 law granting certiorari jurisdiction over military cases, only court-martial convictions that are granted review by the nation’s highest military court may be appealed; those in which that court denies review are excluded from access to the Supreme Court.

In this Article, we argue that this jurisdictional limitation is both bad policy and unconstitutional for several reasons, and that Congress should remove it.

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Lund on Sex Offenders and the Free Exercise of Religion

Christopher C. Lund (Wayne State University Law School) has posted Sex Offenders and the Free Exercise of Religion (Notre Dame Law Review, Vol. 96, p. 1025, 2021) on SSRN. Here is the abstract:

 

In a variety of ways, sex offenders in the United States find themselves in a difficult position. One of the lesser-known ways relates to the free exercise of religion. Sometimes by categorical statute, and sometimes by individualized parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present). Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether. And this hardship has a bit of irony in it too. Back in prison, sex offenders could worship freely with others; now ostensibly free, they can no longer do so.

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Conklin on Parker on Whether Death Is Different to Federal Judges

Michael Conklin (Angelo State University) has posted Appellate Inequality Is Not a Virtue: A Response to Brett Parker’s Is Death Different to Federal Judges? on SSRN. Here is the abstract:

 

This Article is a response to Brett Parker’s Note in the Stanford Law Review, Is Death Different to Federal Judges? An Empirical Comparison of Capital and Noncapital Guilt-Phase Determinations on Federal Habeas Review. Parker’s research found that appellate judges are significantly more likely to grant relief to capital murder defendants than they are to similarly situated noncapital murder defendants. While there are some minor issues with how the findings were reported, this Article primarily focuses on the implications of the research. This includes implications of race, the problem with using ratios as a goal, and answering whether being sentenced to death is worse than life without parole. Furthermore, a critique of Parker’s support for the inconsistent standard of appellate review his research discovered is provided.

Almendares on Complicity

Nicholas Almendares (Indiana University Maurer School of Law) has posted Foreseeability, Causation, and Guilt (Forthcoming in Collective Action, Philosophy and the Law, Chiara Valentini and Teresa Marques, editors, Routledge) on SSRN. Here is the abstract:

 

The question of how to define accomplices is both important and vexing, spawning a series of competing, muddled doctrines in U.S. and international law. I argue that the confusion we see in the application of complicity law stems from a deeper theoretical confusion about the nature of accomplice liability. Causal theories of complicity define it by reference to causal contribution: helping bring about the crime makes one an accomplice. But, these theories apply complicity far too broadly -- the taxi driver who unknowingly takes the victim to the site or the worker who maintains the streets all causally contribute to the crime. Recognizing this, John Gardner in particular uses rational attention as a limiting principle, putting some boundaries on the causal chains that the law should take into account. Judges, commentators, and other legal actors, encountering the same problem, have operationalized Gardner's idea in the foreseeability doctrine that similarly limits complicity to consequences that were foreseeable. All else being equal, murder is not a naturally foreseeable consequence of road maintenance. Experience with this doctrine, however, shows that it is not adequate to the task of limiting causal theories of complicity. Even with it in place courts still have to resort to ad hoc policy judgments to avoid unreasonable, overly harsh, punishments. This renders the law arbitrary and inconsistent as like cases end up with different results depending on these ad hoc judgments. Rational attention and foreseeability are therefore not sufficient. Instead, joint intention-based approaches to complicity show more promise and put foreseeability and similar epistemic concepts in their proper place.

Beigelman & Castello on COVID-19 and Intimate Partner Violence

Marie Beigelman and Judit Vall Castelló (University of Barcelona and University of Barcelona) have posted COVID-19 and Help-Seeking Behavior for Intimate Partner Violence Victims on SSRN. Here is the abstract:

 

Using detailed data at the local level on the number of calls to the domestic violence emergency hotline in Spain, we study the effect of the COVID-19 outbreak and the quarantine measures imposed on the help-seeking behavior of intimate partner violence victims. Our analysis focuses on Spain, which is one of the European countries that was most affected by the COVID-19 pandemic and, as a consequence, implemented one of the strictest quarantine policies in Europe. We find that the implementation of the lockdown policy was associated with a 41 percentage point increase in the number of calls to the emergency hotline compared to the pre-policy period. This effect was stronger during the strict confinement period but persisted in the medium term, after quarantine was lifted. Using detailed mobile phone data to measure mobility levels, we document stronger effects in provinces whose effective mobility reduction was more intense. Our results are crucial from a policy perspective, as many countries are faced with a second wave of the pandemic.

Henderson et al. on Identifying Reluctance in Commercially Sexually Exploited Adolescents

Hayden Henderson, Scarlet Cho, Agnieszka Nogalska and Thomas D. Lyon (USC Gould School of Law, USC Gould School of Law, Students, University of Southern California and University of Southern California Gould School of Law) have posted Identifying Novel Forms of Reluctance in Commercially Sexually Exploited Adolescents (Forthcoming, Child Abuse & Neglect) on SSRN. Here is the abstract:

 

Research has largely overlooked expressions of reluctance in commercially sexually exploited adolescent (“CSEA”) victims. This is problematic because gaining information from known victims is of the utmost importance in order to better serve the needs of current and potential future victims. The current study proposes a novel conceptualization of reluctance based on CSEA victims’ transcripts from police interviews and courtroom examinations. The study examined police interviews (n = 8 victims, 1558 utterances) and courtroom transcripts (n = 6 victims, 1961 utterances) conducted with female CSE adolescent victims aged 15-17 years old (Mage = 16.29). The victims were associated with the same trafficker and were thus interviewed by the same police officers, and for those who testified, were questioned by the same lawyers in court. Sixteen reluctance tactics were identified, including several that have been overlooked in previous literature.

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Arango on The Third-Party Doctrine

Steven Arango has posted Cloudy with a Chance of Government Intrusion: The Third-Party Doctrine in the 21st Century (Catholic University Law Review 2020) on SSRN. Here is the abstract:

Technology may be created by humans, but we are dependent on it. Look around you: what technology is near you as you read this abstract? An iPhone? A laptop? Perhaps even an Amazon Echo. What do all these devices have in common? They store data in the cloud. And this data can contain some of our most sensitive information, such as business records or medical documents.

Even if you manage this cloud storage account, the government may be able to search your data without a warrant. Federal law provides little protection for cloud stored data. And the Fourth Amendment may not be any better because of the third-party doctrine, which allows the government to search and seize information entrusted to a third party—without a warrant.

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McAllister on Peremptory Challenges

LaCrisha McAllister has posted Closing the Loophole: A Critical Analysis of the Peremptory Challenge and Why it Should be Abolished (48 S.U.L. Rev. (2021)) on SSRN. Here is the abstract:

In theory peremptory challenges should be used to ensure a fair system of jury selection, however, in practice, they are a loophole exploited to racially discriminate. Peremptory challenges are now systematically and intentionally employed to racially discriminate in the jury selection process, effectively excluding Black potential jurors from jury service.

At the outset, the author examined Swain v. Alabama, Batson v. Kentucky’s precursor, where the court’s holding made it almost impossible for a defendant to prove racial discrimination in the jury selection process. The author further reviewed Batson as a basis of understanding how the use of peremptory strikes are challenged after Swain, and Flowers v. Mississippi to demonstrate the problems that the use of peremptory challenges present. Additionally, accepted race-neutral reasons asserted during Batson inquiries in several federal cases were investigated to determine if they were in fact race-neutral.

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Neanidis & Rana on Crime and COVID-19

Kyriakos C. Neanidis and Maria Paola Rana (University of Manchester - School of Social Sciences and Salford University) have posted Crime in the Era of COVID-19: Evidence from England on SSRN. Here is the abstract:

 

The rapid spread of the COVID-19 pandemic and the prescribed countermeasures of restrictions to mobility and social distancing are disrupting economic activity around the world. This applies to legal economic activity but also to criminal behavior and illegal activity. In this study, we investigate the effects of COVID-19-induced lockdowns on recorded crime in England. The enforcement of lockdowns in the country at both the national and local levels, temporally and spatially, allows unveiling the impact on criminal activities by type of shutdown policy. We use official crime data across the universe of local authorities dating back to May 2013 for all recorded crime categories. We find that (1) National lockdowns decrease all types of criminal behavior, except for anti-social behavior, drug offences and crimes against public order which are recording increases. (2) Relaxing national lockdown restrictions attenuates the initial crime effects of strict lockdowns across all crimes. (3) Local lockdowns affect fewer crime categories, limited to increasing anti-social behavior and weapons possession offences and decreasing bicycle theft and other theft violations, with findings being driven by late-entry areas of such policies. (4) A change in the local lockdown scheme implemented by the government in October 2020 does not have a markedly dissimilar effect on criminal activity compared to the earlier scheme. (5) Back-of-the-envelope calculations suggest that government-mandated lockdowns reduced the economic costs of crime by approximately £4.3 billion for the country as a whole (in 2020 British pounds).

Lynch et al. on Traumatic Brain Injury and the Criminal Trial Process

Alison Lynch, Michael L. Perlin and Heather Cucolo (Mental Disability Law & Policy Associates, New York Law School and New York Law School) have posted 'My Bewildering Brain Toils in Vain': Traumatic Brain Injury, the Criminal Trial Process, and the Case of Lisa Montgomery on SSRN. Here is the abstract:

 

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment. Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced to death, and ultimately executed for the murder of a pregnant woman and the kidnapping of the woman’s unborn child. Her case reflects all that is wrong with the way we treat criminal defendants with traumatic brain injuries.

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Berryessa & Balavender on Remorse and Sentencing

Colleen Berryessa and Ashley Balavender (Rutgers, The State University of New Jersey - School of Criminal Justice and Rutgers, The State University of New Jersey - School of Criminal Justice) have posted The Value of Remorse as a 'Therapeutic Tool' for Probation Officers in Sentencing (Forthcoming in M. Perlin & K. Frailing (Eds.), The Therapeutic Jurisprudence Implications of Judicial Decision-Making by Non-Judicial Officers. Philadelphia, PA: Temple University Press) on SSRN. Here is the abstract:

 

Although shame and guilt are often conceived as adverse sentiments in criminal contexts, defendants’ expressions of remorse may actually act as an effective “therapeutic tool” in the legal process in order to reduce negative emotions, decrease future recidivism, and increase both community and victim healing, as well as rehabilitation. As such, evaluations of remorse should be integrated into decision-making processes at different stages of the criminal-legal process. The current chapter discusses the potential role of remorse, as a form of “therapeutic guilt,” in the context of probation officer decision-making and the relevance of remorse to their pre-sentencing reports and sentencing recommendations. We argue that probation officers should evaluate, recognize, and adopt the therapeutic value of remorse as a type of “reintegrative shaming” that can provide genuine evidence of their clients’ potential for restoration and reintegration into the community. Ultimately, this chapter provides recommendations and a framework for probation officers on how to best recognize and assess true remorse, understand its therapeutic relevance within the Therapeutic Jurisprudence framework, and how it may be integrated into their reports and decision-making in sentencing moving forward.

Gold & Wright on The Political Patterns of Bail Reform

Russell M. Gold and Ronald F. Wright (University of Alabama School of Law and Wake Forest University - School of Law) have posted The Political Patterns of Bail Reform (Wake Forest Law Review, Vol. 55, No. 4, 743) on SSRN. Here is the abstract:

 

In this introduction to the Wake Forest Law Review’s symposium on pretrial detention reform, we examine the politics of the issue at the state and local levels. First, reforms in different places do not all share the same objectives. Some places seek less pretrial detention, while others wish to eliminate the use of cash bail that releases dangerous wealthy people and incarcerates other people solely for being poor. Second, localism is a powerful force in the choice of reform methods. There is no single sequence of reforms that state and local governments have followed to protect pretrial liberty. Even if the recent proposal from the Uniform Law Commission were to become a uniform statutory floor nationwide, some jurisdictions would nonetheless pursue more ambitious reforms.

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Natapoff on Criminal Municipal Courts

Alexandra Natapoff (Harvard Law School) has posted Criminal Municipal Courts (Harvard Law Review, Vol. 134, No. 3, p. 964, 2021) on SSRN. Here is the abstract:

 

Municipal courts are the lowest and least scrutinized echelon of the U.S. criminal system. Largely ignored by judicial theorists, municipal governance scholarship, and criminal theory alike, these city-controlled courts operate on the intellectual sidelines; even basic public information about their dockets and operations is scarce. This Article brings municipal courts into the broader legal and scholarly conversation, offering the first comprehensive analysis of the enormous municipal court phenomenon. Nationwide, there are over 7,500 such courts in thirty states. Collectively they process over three and a half million criminal cases every year and collect at least two billion dollars in fines and fees. Created, funded, and controlled by local municipalities, these courts — sometimes referred to as “summary” or “justice” or “police” courts — are central to cities’ ability to police, to maintain public safety, and to raise revenue. At the same time, they often exhibit many of the dysfunctions for which lower courts have been generally criticized: cavalier speed, legal sloppiness, punitive harshness, and disrespectful treatment of defendants. Unlike their state counterparts, however, the U.S. Supreme Court has formally excused municipal courts from some basic legal constraints: judges need not be attorneys and may simultaneously serve as city mayors, while proceedings are often summary and not of record. These hybrid institutions thus pose thorny conceptual challenges: they are standalone judicial entities that are also arms of municipal government operating under reduced constitutional constraints as they mete out criminal convictions. As such, they create numerous tensions with modern norms of due process, judicial independence, and other traditional indicia of criminal court integrity.

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Campbell on Protests and Police Lethal Force

Travis Campbell (University of Massachusetts at Amherst - College of Social and Behavioral Sciences - Department of Economics) has posted Black Lives Matter's Effect on Police Lethal Use-of-Force on SSRN. Here is the abstract:

 

Has Black Lives Matter influenced police lethal use-of-force? A difference-in-differences design finds census places with Black Lives Matter protests experience a 15% to 20% decrease in police homicides over the ensuing five years, around 300 fewer deaths. The gap in lethal use-of-force between places with and without protests widens over these subsequent years and is most prominent when protests are large or frequent. This result holds for alternative specifications, estimators, police homicide datasets, and population screens; however, it does not hold if lethal use-of-force is normalized by violent crime or arrests. Protests also influence local police agencies, which may explain the reduction. Agencies with local protests become more likely to obtain body-cameras, expand community policing, receive a larger operating budget, and reduce the number of property crime-related arrests, but forego some black officer employment and college education requirements.

Greenberg on Wrongful Convictions of Indigenous Youth

Jeremy Greenberg has posted When One Innocent Suffers: Phillip James Tallio and Wrongful Convictions of Indigenous Youth (Criminal Law Quarterly, Vol. 67) on SSRN. Here is the abstract:

This paper examines the causes - sociological, psychological, and legal - for the wrongful conviction of Indigenous persons, and in particular, Indigenous youth, in Canada. The paper includes an overview of research on causes of wrongful conviction, as well as background on the systemic over-incarceration of Indigenous persons in Canada.

The paper also includes recommendations on reducing wrongful conviction risk factors, including, inter alia, false confessions, plea bargaining, bias and "tunnel vision" by police and other state actors, the overlap between the child welfare and criminal justice systems, the prevalence of mental illness and disabilities in the criminal justice system, the legacy of Residential Schools and ongoing marginalization of Indigenous persons, and the evolving philosophy of youth criminal justice. The experience of one Indigenous youth, Phillip James Tallio, is situated against this backdrop.