CrimProf Blog

Gentithes on Rhetoric and Nostalgia in the Criminal Justice Reform Movement

Michael Gentithes (University of Akron School of Law) has posted Rhetoric and Nostalgia in the Criminal Justice Reform Movement (12 ConLawNOW 129 (2021)) on SSRN. Here is the abstract:

 

Today’s movement for criminal justice reform and its attendant "defund the police" slogan contain nuanced calls to redirect public funds in ways that will both control crime and support downtrodden neighborhoods. But the language in those calls can easily be misinterpreted. Such poor messaging misleads both the movement’s members and the public in two important ways. First, it repeats many of the mistakes made by protest anthems of the past. For too many Americans enduring today’s all-too-real dystopia, calls to defund sound like calls to anarchy, not arguments for peaceable, sensible reforms. Second, defunding rhetoric contains an element of historical nostalgia, suggesting that a return to underpoliced neighborhoods will allow young men of color to flourish. But there are risks in discriminatory underpolicing as well as discriminatory overpolicing; the former led many liberal and African American activists in the 1960s and 70s to call for greater crime control and police presence, which had disastrous consequences still playing out today.

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Conti-Brown on Marks and Sentencing Reform

Peter Conti-Brown (University of Pennsylvania - The Wharton School) has posted The Principled Leadership of Middle Management: Stephen F. Williams’s Liberal Critique of Marks (Yale Journal on Regulation, Vol. 38, No. 3, 2021) on SSRN. Here is the abstract:

 

Most law students spend their first year—or sometimes much longer—struggling to discern legal rules from judicial opinions. That is true even for relatively straightforward opinions. When they encounter splintered opinions—especially cases where no opinion commands a majority—the exercise becomes more difficult even for the most seasoned lawyer.

The U.S. Supreme Court, in an effort to add coherence to these not-infrequent instances of judicial disarray, created a rule to guide this process. The so-called Marks rule instructs courts, including the Supreme Court itself, to honor horizontal and vertical stare decisis even in the face of splintered decisions by discerning what proposition, if appropriately narrowed, would have commanded a majority. It is a hypothetical exercise and a controversial one. Legal scholar Richard Re has recently recommended that we cast it aside entirely, a position I embrace below.

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Ezer et al. on Criminalization of Poverty and Marginalization

Tamar Ezer, David Stuzin and Franco Piccinini (University of Miami - School of Law, University of Miami - School of Law and University of Miami - University of Miami Law Review) have posted Foreword: Addressing the Criminalization of Poverty and Marginalization (75(1) University of Miami Law Review CAVEAT (2020)) on SSRN. Here is the abstract:

 

Across the globe and throughout the United States, governments use petty offenses, such as loitering laws, to exert social control over marginalized communities. Petty offenses enable the policing of public spaces to reinforce social hierarchies and rigid gender norms. People experiencing homelessness regularly face the threat of criminal sanctions for fulfilling basic needs, and fines and fees in the justice system trap the poor in a cycle of poverty and incarceration. In September 2019, the Human Rights Clinic at the University of Miami School of Law hosted a symposium on challenging petty offenses that criminalize poverty, marginalization, and gender nonconformity, in collaboration with the University of Miami Law Review, University of Miami Race & Social Justice Law Review, University of Miami School of Communication, National Law Center on Homelessness & Poverty, and the Open Society Foundations’s Human Rights Initiative.

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Garner on District Court En Bancs

Maggie Gardner (Cornell Law School) has posted District Court En Bancs (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Despite the image of the solitary federal district judge, there is a long but quiet history of federal district courts deciding cases en banc. District court en bancs predate the development of en banc rehearings by the federal courts of appeals and have been used to address some of the most pressing issues before federal courts over the last one hundred years: Prohibition prosecutions, bankruptcies during the Depression, labor unrest in the 1940s, protracted desegregation cases, asbestos litigation, and the constitutionality of the U.S. Sentencing Guidelines, to name a few. This Article gathers more than 140 examples of voluntary collective adjudication by district judges. While its aim is primarily descriptive and analytical, it also offers a preliminary normative defense of the occasional use of such proceedings. Building that defense requires consideration of the district courts’ inherent authority; the advisability of ad hoc procedure; and the limits of available procedural alternatives for promoting such judicial values as economy, uniformity, and decisional legitimacy.

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Pruitt & Davies on Rural Access to Justice

Lisa R. Pruitt and Andrew Davies (University of California, Davis - School of Law and Southern Methodist University – Dedman School of Law) have posted Investigating Access to Justice, the Rural Lawyer Shortage, and Implications for Civil and Criminal Legal Systems (Research Methods for Rural Criminologists (2022 Forthcoming)) on SSRN. Here is the abstract:

 

Access to justice (A2J) is associated with a number of metrics aimed at assessing the extent to which people enjoy equal access to courts, including pre-trial means for resolving disputes. While the concept is typically associated with civil justice systems, many factors associated with that context overlap with criminal justice system concerns. Central among these and of growing significance in the rural context is a worsening attorney shortage. When lawyers are not readily available, A2J is undermined, and costs to litigants and courts rise.

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Hayat on Housing the Decarcerated

Norrinda Hayat (Rutgers Law School - Newark) has posted Housing the Decarcerated (California Law Review, Vol. 110, 2022) on SSRN. Here is the abstract:

 

The coronavirus pandemic exposed an issue at the intersection of the public health, carceral and housing crises – the lack of housing for the recently decarcerated. Early in the pandemic calls came to release incarcerated persons and cease arrests in light of the risks posed by failing to be able to socially distance while incarcerated. At the same time, the pandemic forced a national conversation about the sheer number of unhoused persons in our country. The pandemic created an emergent argument for both broad scale decarceration and publicly funded housing. The practical process of securing housing for the recently decarcerated, however, is fraught because of what is described in this article as the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court case, HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels – eligibility, enforcement and set asides.

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Zajac on Criminal Jurisdiction over the Internet

Dominik Zając (Jagiellonian University, Department of Criminal Law) has posted Criminal Jurisdiction over the Internet: Jurisdictional Links in the Cyber Era (Cambridge Law Review 2019) on SSRN. Here is the abstract:

 

A result of the creation of the Internet is that the real world no longer is the only space in which interpersonal interaction occurs. Now, a completely new, somehow parallel-to-reality plane exists that escapes geographical limitations. It forces a redefinition of the concepts of sovereignty and jurisdiction. Individual countries, to some extent grouped, have begun to seek any foothold that allows them to regulate and punish behaviors undertaken by Internet users. This study is a critical analysis of solutions used to determine the scope of criminal jurisdiction in cyberspace. Considering the intensive development of social interactions undertaken using the Internet, it appears justified to move away from a rigid model of jurisdictional rules and shift to a discursive model based on weighing the interests of states. The considerations are divided into six parts. Section II presents a short description of a method based on classical jurisdictional rules. Section III includes a discussion of traditional approach defects, particularly considering those features that prevent the application of that traditional approach to behaviors undertaken using cyberspace. Section IV discusses an alternative method of determining the scope of jurisdiction based on important elements of the social situation (jurisdictional links). Sections V and VI parts are devoted to an analysis of individual nexuses. In Section VII, the method of weighing the significance of the links is presented. This method allows granting a particular state the right to regulate or impose a penalty for a given behavior on the Internet.

Doleac on Encouraging Desistance from Crime

Jennifer L. Doleac (Texas A&M University - Department of Economics) has posted Encouraging Desistance from Crime on SSRN. Here is the abstract:

 

Half of individuals released from prison in the United States will be re-incarcerated within three years, creating an incarceration cycle that is detrimental to individuals, families, and communities. There is tremendous public interest in ending this cycle, and public policies can help or hinder the reintegration of those released from jail and prison. This review summarizes the existing empirical evidence on how to intervene with existing offenders to reduce criminal behavior and improve social welfare.

Meyn on Race-Based Remedies in Criminal Law

Ion Meyn (University of Wisconsin Law School) has posted Race-Based Remedies in Criminal Law on SSRN. Here is the abstract:

 

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

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Burri & von Bothmer on The EU and AI

Thomas Burri and Fredrik von Bothmer (University of St. Gallen and DaimlerChrysler) have posted The New EU Legislation on Artificial Intelligence: A Primer on SSRN. Here is the abstract:

 

On 21 April 2021, the Commission presented its long-awaited proposal for new legislation of the European Union on artificial intelligence. This primer explains and discusses the proposed regulation.

Jouet on Foucault, Prison, and Human Rights

Mugambi Jouet (McGill Faculty of Law) has posted Foucault, Prison, and Human Rights: A Dialectic of Theory and Criminal Justice Reform (Theoretical Criminology (forthcoming 2021)) on SSRN. Here is the abstract:

 

Michel Foucault’s advocacy toward penal reform in France differed from his theories. Although Foucault is associated with the prison abolition movement, he also proposed more humane prisons. The article reframes Foucauldian theory through a dialectic with the theories of Marc Ancel, a prominent figure in the emergence of liberal sentencing norms in France. Ancel and Foucault were contemporaries whose legacies are intertwined. Ancel defended more benevolent prisons where experts would rehabilitate offenders. This evokes exactly what “Discipline and Punish” cast as an insidious strategy of social control. In reality, Foucault and Ancel converged in intriguing ways. The dialectic offers another perspective on Foucault, whose theories have fostered skepticism about the possibility of progress. While mass incarceration’s rise in America may evoke a Foucauldian dystopia, the relative development of human rights and dignity in European punishment reflects aspirations that Foucault embraced as an activist concerned about fatalistic interpretations of his theories.

Maclin on Fifth Amendment Protection for Corporate Officers

Tracey Maclin (Boston University - School of Law) has posted Long Overdue: Fifth Amendment Protection for Corporate Officers (Forthcoming Boston University Law Review, 2021) on SSRN. Here is the abstract:

 

The Supreme Court has extended to corporations many of the same constitutional rights that were originally intended to protect people. One notable exception, however, is the Fifth Amendment’s prohibition on compulsory self-incrimination. “Corporations may not take the Fifth.” There is a long line of cases dating back to the start of the twentieth century stating – but never directly holding – that corporations are not protected by the self-incrimination clause.

But the fact that a corporation cannot invoke the Fifth does not explain why a person who works for a corporation cannot. As a matter of text, the Fifth Amendment draws no distinction among the “person[s]” it protects; everyone is protected – citizens and non-citizens. And the amendment certainly does not distinguish among “person[s]” depending on where they work or whether they are employed or not. Indeed, because the Justices agree, as Justice Scalia once noted, that “[a]ll the provisions of the Bill of Rights set forth the rights of individual men and women – not, for example, of trees or polar bears,” an individual who works for a corporation—for example, the president or treasurer—is protected by the Fifth, when forced to produce corporate records that will personally incriminate him.

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Nogalska et al. on Policing Interviews of Commercially Sexually Exploited Adolescents

Agnieszka Nogalska, Hayden Henderson, Scarlet Cho and Thomas D. Lyon (USC Gould School of Law, USC Gould School of Law, USC Gould School of Law, Students and University of Southern California Gould School of Law) have posted Police Interviewing Behaviors and Commercially Sexually Exploited Adolescents' Reluctance (Forthcoming, Psychology, Public Policy, and Law) on SSRN. Here is the abstract:

 

Little is known about the relation between law enforcement interviewing behaviors and commercially sexually exploited children’s (CSEC) reluctance. This study examined the relation between officers’ use of maximization, (references to) expertise, minimization, and support and adolescent CSEC victims’ reluctance in a small sample of police interviews (n = 2,416 question-answer pairs across ten interviews). Twenty-six percent of officers’ utterances contained at least one interviewing tactic. When statements were paired with maximization, they were correlated with more reluctance than when they were not paired with an interviewing tactic. Contrary to predictions, support was also related to greater reluctance. Open-ended (recall) questions and statements were associated with greater reluctance than closed-ended (recognition) questions. The results highlight the importance of understanding the context in which interviewing strategies are employed when assessing the relation between interviewer behavior and interviewee reluctance.

Jain on Jailhouse Immigration Screening

Eisha Jain (University of North Carolina School of Law) has posted Jailhouse Immigration Screening (70 Duke Law Journal 1703 (2021)) on SSRN. Here is the abstract:

 

Within the past decade, U.S. interior immigration enforcement has shifted away from the street and into the jailhouse. The rationale behind jailhouse screening is to target enforcement efforts on those who fall within federal removal priorities. This Article shows how a program undertaken with the stated aim of targeting immigration enforcement has had precisely the opposite effect: it has massively expanded the reach of immigration enforcement and created extended carceral treatment within the criminal justice system based on suspected immigration status. This approach, in turn, leads to removals that lack adequate process, are inaccurate, or that reflect underlying racial biases in criminal arrests. Jailhouse immigration screening resuscitates what is experienced as a punitive model of immigration enforcement but without the procedural protections that ought to accompany the criminal process. This approach imposes an enormous cost on racial minorities disproportionately subject to low-level arrest, and it cuts against immigration enforcement officials’ stated aim of targeting immigration enforcement. By laying bare how jailhouse screening extends the impact of criminal arrest, undermines due process, and magnifies racial disparities, this Article makes the case for uncoupling immigration screening from the jailhouse altogether. Barring that approach, arrested individuals are entitled to greater front-end procedural protections, including neutral review of immigration detainers.

Conklin on Hate Crimes

Michael Conklin (Angelo State University) has posted Unnecessary, Counterproductive, and Unjust: The Case Against Hate Crime Legislation (___ George Mason Law Review Forum ___ (forthcoming, 2021)) on SSRN. Here is the abstract:

 

The 2021 Atlanta shootings of six Asian spa workers has sparked interest regarding hate crime legislation. In light of the push to expand such legislation, this Article examines the often-overlooked problems with hate crime legislation. Critiques of hate crime legislation covered include arbitrariness of which groups are protected classes; incentivization of unhealthy competition among disadvantaged groups; increased difficulty of prosecution at trial; inconsistent enforcement; and counterproductive effects, such as increased crimes and hate group activity. And all of this is against the backdrop of legislation that is largely unnecessary since motive can be considered as an aggravating factor at sentencing in the absence of hate crime legislation.

Oberg on EU Transnational Criminal Enforcement

Jacob Öberg (Lund University- Faculty of Law) has posted Guest Editorial: EU Agencies in Transnational Criminal Enforcement: From a Coordinated Approach to an Integrated EU Criminal Justice (28 (2021) Maastricht Journal of European and Comparative Law, online first, 1-9) on SSRN. Here is the abstract:

 

The articles in this special issue consider the institutional foundations of the Union’s criminal policy – a highly critical question for the future development of the Area of Freedom, Security and Justice. The ratification of the Lisbon Treaty and the subsequent legal and political developments have entailed an unprecedented reinforcement of the powers of the EU’s criminal justice agencies Europol, Eurojust and, recently, the establishment of a novel criminal justice body – the European Public Prosecutor’s Office. On the basis of the Treaty mandate, the EU legislator has adopted important reforms such as the EPPO Regulation, and new Europol and Eurojust regulations. In light of these developments, this special issue explores via a multi-disciplinary investigation the extent to which the increased competences of the EU and the stronger presence of EU criminal justice agencies have transformed EU criminal law from an ‘intergovernmental’ regime to a ‘supranational’ and ‘integrated’ framework. We expect that this special issue will enhance further debate on EU criminal justice agencies, encourage novel paths to bridge the boundaries between disciplinary epistemic communities in the study of EU criminal justice and more broadly contribute to an advanced understanding of the role of law in social and political integration

Ravid on Inconspicuous Victims

Itay Ravid (Villanova University - School of Law) has posted Inconspicuous Victims (25(2) Lewis & Clark L. Rev. _______ (2021 Forthcoming)) on SSRN. Here is the abstract:

 

Recent debates on racial inequalities in the criminal justice system focus on offenders while neglecting the other side of the criminal equation—victims of crime. Such scholarly oversight is surprising given the similarly deep racial disparities in the treatment of victims, manifested in different stages of the criminal justice system. Delving into the underexplored territory of racialized victimization, this project bridges that gap and exposes the roots of the disparate treatment of Black victims in the American criminal justice system. These unprecedented times of the COVID-19 pandemic and racial tensions bring to the fore questions about governmental allocation of resources and emphasize, maybe more than ever, the importance of going back to the roots of such a systematic institutional neglect. Through the ideal victim framework, I argue that from the early days of the victims’ rights movement to the present, Black victims have been considered non-ideal victims and, as such, unworthy of institutional and legal recognition.

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Conklin on Informing Juries of the Cost of Incarceration

Michael Conklin (Angelo State University) has posted Reducing Mass Incarceration Through Cost Salience: Why Juries Should Be Told the Cost of Incarceration (___ Criminal Justice Law Review ___ (2021 Forthcoming)) on SSRN. Here is the abstract:

 

The practice in Missouri of informing judges of incarceration costs resulted in reductions to both mass incarceration and recidivism. States that allow jury sentencing are ideal for allowing jurors to also consider incarceration costs. The need for such common-sense reform is timely. COVID-19 has drastically reduced state budgets and there is widespread agreement that the criminal justice system over-punishes. This results in rare, bipartisan support for criminal justice reform. Jury incarceration-cost salience is also a more palatable method for reform among politicians who fear being labeled “soft on crime.”

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Bowman on "Blanket" Pardons

Frank O. Bowman III (University of Missouri School of Law) has posted Why "Blanket Pardons" Are Unconstitutional (33 Federal Sentencing Reporter __ (2021)) on SSRN. Here is the abstract:

 

In 1974, President Gerald Ford pardoned former President Richard Nixon for "all offenses against the United States" committed during both his terms of office. This pardon, unique in American history, was not limited even to offenses of which President Ford then had knowledge. At the close of the Trump Administration, it was speculated that Mr. Trump might issue similar "blanket pardons" to family, friends, or political supporters. He did not, so far as is now known. But he might have issued secret pardons of that breadth, or a future president might do so.

Accordingly, this paper examines the constitutionality of "blanket pardons" for all federal offenses, known and unknown. It examines the constitutional text, as well as British and American legal history, and concludes that, despite the Ford-Nixon precedent, such pardons exceed the president's authority under the Pardon Clause.

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Guiora on Omissions and Institutions

Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Failing to Protect the Vulnerable: The Dangers of Institutional Complicity and Enablers (University of Illinois Law Review, 2022 Forthcoming) on SSRN. Here is the abstract:

 

Criminal liability has typically been reserved for those who have both actus reus and mens rea. Omission liability is infrequent in modern criminal codes. Despite wide public support for aiding those in peril, Western democracies have historically refused to impose any penalty upon those who fail to aid someone in danger.

However recent high profile abuse scandals—including those of the USA gymnastics team, University of Michigan and the Catholic Church have caused scholars and policymakers to rethink these assumptions. In recent years, some jurisdictions have slowly come to criminalize those who witness another in peril and fail to provide aid. However, governments remain silent on whether to punish actors not present, but who learn of ongoing peril to someone they have power to protect, but nevertheless choose to not act on their behalf. Indeed, unlike other threats to society, no legislation currently exists to effectively criminalize these enablers of crime.

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