CrimProf Blog

Delfino on The Opioid Epidemic

Rebecca Delfino (Loyola Law School Los Angeles) has posted A New Prescription for the Opioid Epidemic: 360-Degree Accountability for Pharmaceutical Companies and Their Executives on SSRN. Here is the abstract:

 

We can no longer ignore this--A national crisis resulting in more than half-a-million American deaths, costing hundreds of millions of dollars in losses to the economy, ravaging the health care system, and devastating state and local communities. This narrative describes the COVID-19 pandemic and something else: the epidemic of opioid addiction and abuse. In the last twenty years, the opioid epidemic claimed the lives of more than 700,000 people at the cost of more than 500 billion dollars to the economy. The COVID-19 pandemic has made the opioid epidemic worse, causing a staggering increase in opioid-related overdose deaths. Even now, on average, 140 people die every day from an opioid overdose, making it a leading cause of injury-related death in the United States. And 70 percent of those deaths involve a prescription opioid.

There is a growing sense that those responsible for the opioid epidemic, specifically drug companies and their executives, have escaped responsibility for their dangerous and deceptive practices in manufacturing and marketing opioids.

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Sarch on Luck

Alex F. Sarch (University of Surrey School of Law) has posted Don't Be Cruel: Building the Case for Luck in the Law (Journal of Ethics and Social Philosophy (Forthcoming)) on SSRN. Here is the abstract:

 

The problem of legal luck asks why defendants who cause harm should receive more punishment than analogous actors who, simply due to luck, don’t cause harm. Here I consider one type of justification that assumes luckily harmless actors are just as culpable as their harmful counterparts. Specifically, I focus on the legislature’s reasons to ratchet down punishments for harmless wrongdoers beneath what is permitted on culpability grounds. After critiquing several such arguments (including one from mercy), I develop a more promising version based on the idea that the legislature has a duty not to be cruel. The legislature would violate this duty if it always passed laws imposing the maximum punishments permitted on culpability grounds. Withholding some punishment otherwise due harmless wrongdoers thanks to their culpability is a particularly appropriate way for the legislature to eschew cruelty. This provides a promising new justification for punishing luckily harmless misconduct less harshly.

Williams & Caldwell on Girls Courts and Restorative Justice

Tiffany M. Williams and Harry M. Caldwell (Pepperdine University - Rick J. Caruso School of Law and Pepperdine University - Rick J. Caruso School of Law) have posted No Girl Left Behind: Girls Courts as a Restorative Justice Approach to Healing (Seton Hall Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This article examines the need for a gendered restorative justice approach to healing girls from the trauma, abuse, abandonment, addiction, violence and misdirection that many of them have encountered, as a result of the juvenile justice system’s abandonment of its restorative justice roots and its failure to adequately account for gender distinctions between boys and girls. This article focuses on the vulnerabilities of girls of color who are at particular risk for spiraling from the juvenile courts into the adult criminal justice system which remains ill-equipped to meet the needs of incarcerated females. This article will also examine the burgeoning movement of restorative court interventions for delinquent girls reflected in the creation of specialized Girls Courts. This article will culminate in a proposed reformed template for Girls Court to expand girls’ opportunities, particularly Black girls and other girls of color, to heal from trauma, addiction and broken family structures, and restore girls’ ability to thrive in a meaningful life.

Gould on Prosecutors and Public Defense

Jon Gould (ASU School of Criminology and Criminal Justice) has posted When the Courts Are Indifferent and Legislators Apathetic: Partnering with Prosecutors to Protect Public Defense on SSRN. Here is the abstract:

 

The last decade offered advocates fleeting hope that the courts would step in to reform public defense. However, recent decisions by state courts – and the intransigence of the federal judiciary – have proven those prospects a mirage. In this essay, a courts’ researcher and advocate condemns federal and state jurists for their open and continuing refusal to address a constitutional crisis occurring daily in their own courthouses. Legislatures are proving powerless to fix the problem, too. If change is possible, it will come from the most unlikely partners in an adversarial legal system – prosecutors. Far from a wild notion, this initiative is already underway in several jurisdictions. Reform makes for strange bedfellows.

Grad on Initial Aggressors

Kenneth Grad (York University, Osgoode Hall Law School) has posted Picked the Wrong Cars: A Comment on R. v. Theriault, R. v. Khill, and the Initial Aggressor (Criminal Law Quarterly, Vol. 68, No. 4, 2020) on SSRN. Here is the abstract:

 

The decision in R. v. Theriault, 2020 ONSC 5725 attracted considerable attention, both for being broadcast over the internet and for Justice Di Luca's controversial ruling, which many viewed as yet another instance of the criminal justice system failing racialized persons. Although I view Di Luca J. as a thoughtful jurist and empathize with those who have sought to shield him from public criticism, this article argues that Justice Di Luca erred in his treatment of self-defence.

The fundamental error in Theriault was in the trial judge's failure to recognize that the accused--Michael and Christian Theriault--were the initial aggressors in their confrontation with the victim, Dafonte Miller. In fairness to Di Luca J., the status of the initial aggressor in Canadian self-defence law has long been uncertain, attributable to our "unbelievably confusing" prior self-defence legislation and the Supreme Court of Canada's decision to collapse the distinction between initial aggressors and all other accused in R. v. McIntosh, [1995] 1 SCR 686.

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Hoag on Black on Black Representation

Alexis Hoag (Columbia Law School) has posted Black on Black Representation (New York University Law Review, Vol. 96, 2021) on SSRN. Here is the abstract:

 

When it comes to combatting structural racism, representation matters, and this is true for criminal defense as much as it is for health services, education, and civil legal services. This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants, and argues that such an expansion could be of particular benefit to indigent Black defendants. Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship. Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

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Dills et al. on The Effects of State Marijuana Legalization

Angela K. Dills, Sietse Goffard, Jeffrey Miron and Erin Partin (Western Carolina University, Cato Institute, Cato Institute and Cato Institute) have posted The Effect of State Marijuana Legalizations: 2021 Update (Cato Institute, Policy Analysis No. 908) on SSRN. Here is the abstract:

 

In November 2012, Colorado and Washington approved ballot initiatives that legalized marijuana for recreational use under state law. Since then, nine additional states (Alaska, Oregon, California, Nevada, Maine, Vermont, Massachusetts, Michigan, and Illinois) plus the District of Columbia have followed suit, either by ballot initiative or legislative action. Voters in four other states (New Jersey, South Dakota, Arizona, and Montana) approved state ballot measures legalizing marijuana for personal use in the November 2020 election.

Supporters and critics make numerous claims about state‐​level marijuana legalizations. Advocates suggest that legalization reduces crime, raises tax revenue, lowers criminal justice expenditures, improves public health, increases traffic safety, and stimulates the economy. Critics argue that legalization spurs marijuana and other drug or alcohol use, increases crime, diminishes traffic safety, harms public health, and lowers teen educational achievement.

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Opinion Reinstating Death Sentence Overturned by Sixth Circuit on Ineffective Assistance Grounds

The Court issued a per curiam opinion in Mays v. Hines. Justice Sotomayor dissented without opinion.

Hopwood on The Rule of Lenity

Shon Hopwood (Georgetown University Law Center) has posted Restoring the Historical Rule of Lenity as a Canon (95 NYU L. Rev. 918 (2020)) on SSRN. Here is the abstract:

 

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule.

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Larkin on Presidential Clemency

Paul J. Larkin Jr. (The Heritage Foundation) has posted Focusing Presidential Clemency Decision-Making on SSRN. Here is the abstract:

 

The Article II Pardon Clause grants the President authority to grant clemency to any offender. The clause contains only two limitations. The President cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the President’s authority is plenary. The clause authorizes the President to grant clemency as he sees fit, but does not tell him when he should feel that way.

As a matter of history, Presidents have generally used their authority for legitimate reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous punishment, or who deserves to be forgiven. Nevertheless, neither any President nor the Department of Justice Pardon Attorney, who is ostensibly responsible for managing the government’s clemency process, has recommended a rigorous standard for Presidents to use when making clemency decisions. The Pardon Attorney has compiled a list of relevant factors, which is quite useful, but that list does not identify which factors are necessary and sufficient, nor does it assign those factors an ordinal relationship. The result is that a President is left to act like a chancellor in equity by relying on his subjective assessment of the “the totality of the circumstances.”

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Dunman on Warrant Nullification

L. Joe Dunman (Morehead State University) has posted Warrant Nullification on SSRN. Here is the abstract:

 

Police officers execute thousands of search warrants in the United States every year, often looking for drugs in people’s homes. Many search warrants are executed by militarized “dynamic entry” teams who violently conduct raids late at night with little or no warning, guns drawn. These raids have killed and injured hundreds of people nationwide – not just suspects but also officers and bystand-ers. Protests erupt in response, the community divides, and trust in institutions crumbles.

Legislative and executive policy can reduce the violence of search warrant executions, but could there also be a judicial option? This essay explores one: nul-lification. Like other actors in the criminal justice system, judges can nullify the law, selectively turning off the punitive and violent machine of criminal justice by refusing to ratify militarized law enforcement action.

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Heiny on Eyewitness Identifications

Louisa Heiny has posted Do You See What I See? The Science Behind Utah Rule of Evidence 617 (617 Utah Bar J. 34 (Mar. 2021)) on SSRN. Here is the abstract:

Eyewitness identifications play a key role in many investigations and are often central to a prosecutor’s case. At the same time, eyewitness identifications can be tainted, accidentally or purposely, thus tainting the justice system as well. There are myriad reasons for this phenomenon, but the primary responsibility lies not with the witness, but rather a system that fails to recognize, and often amplifies, mistakes and assumptions in the identification process.

Reamey on Police Use of Force Laws in Texas

Gerald S. Reamey (St. Mary's University School of Law) has posted Police Use of Force Laws in Texas on SSRN. Here is the abstract:

 

Policing sometimes requires the use of force for legitimate purposes: arresting, searching, protecting others, or protecting oneself. The decision to use force requires an officer to weigh the security needs of himself or herself, the needs of others, and the operational needs presented by the situation at hand. Guiding the decision of whether to use force, when to use that force, and the degree of force that is necessary to accomplish the purpose for which it is used, are an often confusing mix of agency policies, constitutional norms, and state and federal laws.

This article focuses on the laws of Texas that limit or allow force to be used in typical policing situations. These laws are not collected in a single statute, or even within a single Code, but reside in a variety of sometimes unlikely places. Texas’s use of force provisions are fragmented, contradictory, and confusing. Often, they are ill-conceived, ineffective, or even unconstitutional.

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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	838
2.	Capitol Offense: Is Donald Trump Guilty of Inciting a Riot at the Capitol? Michael Conklin Angelo State University Date Posted: 27 Jan 2021	715
3.	Restoring the Historical Rule of Lenity as a Canon Shon Hopwood Georgetown University Law Center Date Posted: 18 Mar 2021 [new to top ten]	147
4.	Criminal Law’s Core Principles Paul H. Robinson University of Pennsylvania Law School Date Posted: 10 Feb 2021 [4th last week]	127
5.	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 [7th last week]	102
6.	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 [8th last week]	102
7.	Juveniles Are Not So Different: The Punishment of Juveniles and Adults at the Crossroads Mugambi Jouet McGill Faculty of Law Date Posted: 01 Feb 2021 [9th last week]	100
8.	Moral Intuitions and Moral Nativism John Mikhail Georgetown University Law Center Date Posted: 15 Dec 2020 [new to top ten]	96
9.	Constitutional Liquidation, Surety Laws, and the Right to Bear Arms Robert Leider George Mason University - Antonin Scalia Law School, Faculty Date Posted: 04 Nov 2020 [new to top ten]	77
10.	A Framework Theory of Punishment Tatjana Hörnle Max Planck Institute for the Study of Crime, Security and Law Date Posted: 02 Mar 2021 [new to top ten]	77

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	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 Date Posted: 19 Feb 2021	765
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	471
3.	Black on Black Representation Alexis Hoag Columbia Law School Date Posted: 19 Mar 2021 [new on top ten]	275
4.	Can Prosecutors Help To End Mass Incarceration? Rachel E. Barkow New York University School of Law Date Posted: 06 Feb 2021 [3rd last week]	244
5.	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 [4th last week]	231
6.	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 [5th last week]	222
7.	Viral Injustice Brandon L. Garrett and Lee Kovarsky Duke University School of Law and University of Texas School of Law Date Posted: 23 Feb 2021	185
8.	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 [7th last week]	183
9.	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	169
10.	'Pistol Shots Ring Out in the Barroom Night': Bob Dylan’s 'Hurricane' as an Exam (or Course) in Criminal Procedure Michael L. Perlin New York Law School Date Posted: 09 Feb 2021 [8th last week]	168

Mungan on Rewards versus Imprisonment

Murat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty) has posted Rewards versus Imprisonment (American Law and Economics Review (Forthcoming)) on SSRN. Here is the abstract:

 

This article considers the possibility of simultaneously reducing crime, prison sentences, and the tax burden of financing the criminal justice system by introducing rewards, which operate by increasing quality of life outside of prison. Specifically, it proposes a procedure wherein a part of the imprisonment budget is re-directed towards financing rewards. The feasibility of this procedure depends on how effectively the marginal imprisonment sentence reduces crime, the crime rate, the effectiveness of rewards, and how accurately the government can direct rewards towards individuals who are most responsive to such policies. A related welfare analysis reveals an advantage of rewards: they operate by transferring or creating wealth, whereas imprisonment destroys wealth. Thus, the conditions under which rewards are optimal are broader than those under which they can be used to jointly reduce crime, sentences, and taxes. With an exogenous [resp. endogenous] budget for law enforcement, it is optimal to use rewards when the imprisonment elasticity of deterrence is small [resp. the marginal cost of public funds is not high]. These conditions hold, implying that using rewards is optimal, in numerical examples generated by using estimates for key values from the empirical literature.

Zalnieriute on Automated Facial Recognition Technology

Monika Zalnieriute (University of New South Wales (UNSW) - Faculty of Law) has posted Burning Bridges: The Automated Facial Recognition Technology And Public Space Surveillance In The Modern State (Columbia Science and Technology Law Review 22(2) 2021, Forthcoming) on SSRN. Here is the abstract:

 

A live automated facial recognition technology, rolled out in public spaces and cities across the world, is transforming the nature of modern policing. In R (on the application of Bridges) v Chief Constable of South Wales Police, decided in August 2020 (‘Bridges’) – the first successful legal challenge to automated facial recognition technology worldwide - the Court of Appeal in the United Kingdom held that the use of automated facial recognition technology by the South Wales Police was unlawful. This landmark ruling can set a precedent and influence future policy on facial recognition in many countries. Bridges decision imposes some limits on the previously unconstrained police discretion on whom to target and where to deploy the technology. Yet, while the decision demands a clearer legal framework to limit the discretion of police who use such technology, it does not, in principle, oppose the use of facial recognition technology for mass-surveillance in public places, nor for monitoring political protests.

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Craig on Private Records and Sexual Activity Evidence

Elaine Craig (Dalhousie University - Schulich School of Law) has posted Private Records, Sexual Activity Evidence and the Charter of Rights and Freedoms (Alberta Law Review, Vol. 58, No. 4, 2021) on SSRN. Here is the abstract:

 

The Parliament of Canada has created a new regime dictating the process and admissibility criteria for private records (potentially including digital communications such as emails and texts) that are in the accused's possession in sexual assault proceedings. The legislation also includes new procedural requirements for applications to introduce evidence of a complainant’s other sexual activity under section 276 of the Criminal Code. Several courts have concluded that various parts of these new provisions – which some have nicknamed the ‘Ghomeshi Rules’ – are unconstitutional. The problem with these decisions is that in each one the court has failed to properly balance the competing interests at stake. Stated most plainly, each of them overstates the impact of these provisions on the accused’s right to a fair trial and understates the competing interests to be balanced in an analysis of the constitutionality of these new laws. This article confronts two problematic aspects of the assessment of the impact on the accused’s rights in these cases: hyperbolic assertions about the impact of notice to the complainant on the right to cross-examination and assumptions about the impact of disclosure to the complainant on the truth-seeking function of the trial. This analysis is done, in part, through a case study of the trial transcript in R v Ghomeshi because several of these cases appear to have been litigated or adjudicated in the shadow of Ghomeshi. The article concludes with an assessment of the competing interests that must be balanced with the accused’s right to a fair trial: the complainant’s privacy, equality and dignity interests and the societal interest in encouraging survivors to report sexual offences.

Manikis & De Santi on Punishment and Retribution in Bail Process

Marie Manikis and Jess De Santi (McGill University - Faculty of Law and affiliation not provided to SSRN) have posted Punishment and Retribution Within the Bail Process: An Analysis of the Public Confidence in the Administration of Justice Ground for Pre-Trial Detention ((2020) 35(3) Canadian Journal of Law and Society 413 - 435) on SSRN. Here is the abstract:

 

This paper argues that lower courts have used their discretionary powers provided within legislation and St-Cloud to infuse a predominantly retributive interpretation into the public confidence in the administration of justice ground of pre-trial detention. This is illustrated notably by their choice of and weight afforded to the various aggravating and mitigating factors, the circumstances that relate to the commission of the offence, as well as their analysis of the length of imprisonment. This transfer of sentencing rationales, and to a greater extent, retributivism, into the third ground of pre-trial detention is used, in part, to justify pre-trial detention and can partially explain the rates of pre-trial detention. Finally, the underlying sentencing logic within the bail process can be understood within a sociological perspective, which examines the wider social functions of institutions and suggests that the bail process is an extension of punishment that serves to reinstate social order and public confidence.

Kronick on Forensic Science and Judicial Conformity

Katie Kronick (American University's Washington College of Law) has posted Forensic Science and the Judicial Conformity Problem (Seton Hall Law Review, Vol. 51, No. 3, 2021) on SSRN. Here is the abstract:

 

Almost a quarter of known wrongful convictions have involved faulty forensic science evidence. Since 2008, a series of government-sponsored reports reveals that many areas of forensic science are not only vulnerable to human error, but also lack scientific or evidentiary support for the conclusions they purport to reach. This includes fingerprint analysis, firearm and toolmark examination, bitemark comparison, and hair microscopy. Yet judges continue to admit this expert testimony in criminal cases ranging from homicide to firearm possession to sexual assault without the critical analysis one might expect given the now well-identified problems and the stakes at hand.

This Article explores whether pressure on judges to conform with their peers is a contributing influence to forensic science judicial decision-making and whether judges are admitting faulty or questionable forensic science evidence because they find it reliable or rather because they feel pressure to maintain the norm of admitting such evidence.

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