CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Content Moderation as Surveillance Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 30 Jun 2021 [2nd last week]	140
2.	The Trump Executions Lee Kovarsky University of Texas School of Law Date Posted: 27 Jul 2021 [new to top ten]	116
3.	Procedural Categories Ramon Feldbrin University of Chicago Law School Date Posted: 28 May 2021	100
4.	Drug Supervision Jacob Schuman The Pennsylvania State University (University Park) – Penn State Law Date Posted: 11 May 2021	74
5.	Re-adoption by the European Commission of Cartel Decisions Annulled on Procedural Grounds by the EU Courts Wouter P. J. Wils King's College London - The Dickson Poon School of Law Date Posted: 27 Apr 2021	72
6.	Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 25 Jun 2021 [8th last week]	55
7.	The Puzzle of Clearance Rates, and What They Can Tell Us About Crime, Police Reform, and Criminal Justice Andrew D. Leipold University of Illinois College of Law Date Posted: 10 Jun 2021	53
8.	Against Geofences Haley Amster and Brett Diehl Stanford Law School and Stanford Law School Date Posted: 28 Apr 2021 [10th last week]	51
9.	Handling Aggravating Facts after Blakely: Findings from Five Presumptive-guidelines States Nancy J. King Vanderbilt University - Law School Date Posted: 27 Apr 2021	50
10.	A Scapegoat Theory of Bivens Katherine Mims Crocker William & Mary Law School Date Posted: 24 May 2021 [new to top ten]	40

Mulcahy et al. on The Virtual Courtroom

Linda Mulcahy, Emma Rowden and Wend Teeder (Centre for Socio-Legal Studies, University of Technology Sydney (UTS) and Centre for Socio-Legal Studies) have posted Testing the Case for a Virtual Courtroom with a Physical Jury Hub: Second Evaluation of a Virtual Trial Pilot Study Conducted by JUSTICE (https://justice.org.uk/our-work/justice-covid-19-response/) on SSRN. Here is the abstract:

 

The question that JUSTICE have posed is whether, in this time of crisis, it is possible to hold ‘dispersed’ or virtual trials in which the principles of fairness, accuracy of evidence and certainty can be met. In order to test the case for virtual jury trials they organised four virtual trial experiments between April-June 2020. This report is the second in a series that provides a description and analysis of what has been learnt from these experiments. This report focuses on the final trial in which the jury were assembled together in a physical ‘jury hub’ and all other participants appeared from different locations. In this final experiment the defendant appeared by way of a video link from a court video hearing room in HMP Leeds. This report also draws on additional improvements to the process identified during the third trial where the jury remained dispersed.

Slobogin on Just Algorithms

Christopher Slobogin (Vanderbilt University - Law School) has posted Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk (Cambridge University Press) on SSRN. Here is the abstract:

 

Statistically-derived algorithms, adopted by many jurisdictions in an effort to identify the risk of reoffending posed by criminal defendants, have been lambasted as racist, de-humanizing, and antithetical to the foundational tenets of criminal justice. Just Algorithms argues that these attacks are misguided and that, properly regulated, risk assessment tools can be a crucial means of safely and humanely dismantling our massive jail and prison complex. The book explains how risk algorithms work, the types of legal questions they should answer, and the criteria for judging whether they do so in a way that minimizes bias and respects human dignity. It also shows how risk assessment instruments can provide leverage for curtailing draconian prison sentences and the plea-bargaining system that produces them. The ultimate goal of the book is to develop the principles that should govern, in both the pretrial and sentencing settings, the criminal justice system's consideration of risk. Table of Contents and Preface are provided, as well as a recent article that tracks closely two of the book's chapters.

Lain on Death Penalty Exceptionalism and Administrative Law

Corinna Lain (University of Richmond - School of Law) has posted Death Penalty Exceptionalism and Administrative Law (8 Belmont L. Rev. 552 (2021)) on SSRN. Here is the abstract:

 

Prosecutors ask for death sentences, and judges and juries impose them, but the people who actually carry out those sentences are corrections department officials—administrative agency personnel. In this symposium contribution, I explore a little known nook of administrative law, examining how administrative law norms work in the execution setting of lethal injection. What I find is death penalty exceptionalism—the notion that “death is different” so every procedural protection should be provided—turned on its head. Lethal injection statutes just say “lethal injection,” providing no guidance whatsoever to those who must implement them. Prison personnel have no expertise in deciding what drugs to use or how to perform the procedure. And the usual administrative law devices that we rely on to bring transparency and accountability to the agency decision-making process are noticeably absent. The culmination of these irregularities is a world where lethal injection drug protocols are decided by Google searches and other decision-making processes that would never pass muster in any other area of administrative law. In the execution context, death penalty exceptionalism means that the minimal standards that ordinarily attend administrative decision-making do not apply. It means that when the state is carrying out its most solemn of duties, those subject to its reach receive not more protection, but less. In the end, when the death penalty meets administrative law, administrative law norms get sullied and the death penalty loses the one comfort one might otherwise have: that when the state takes human life, it takes extra care to do it right. What happens at the intersection of these two great bodies of law is a result not good for either.

Durante et al. on Assessing Truthfulness of Child Speech

Zane Durante, Victor Ardulov, Manoj Kumar, Jennifer Gongola, Thomas D. Lyon and Shrikanth Narayanan (University of Southern California, University of Southern California, University of Southern California, USC Gould School of Law, University of Southern California Gould School of Law and University of Southern California) have posted Causal indicators for assessing the truthfulness of child speech in forensic interviews (Forthcoming in Computer Speech & Language) on SSRN. Here is the abstract:

 

When interviewing a child who may have witnessed a crime, the interviewer
must ask carefully directed questions in order to elicit a truthful statement
from the child. The presented work uses Granger causal analysis to examine
and represent child-interviewer interaction dynamics over such an interview.
Our work demonstrates that Granger Causal analysis of psycholinguistic and
acoustic signals from speech yields significant predictors of whether a child
is telling the truth, as well as whether a child will disclose witnessing a
transgression later in the interview. By incorporating cross-modal Granger
causal features extracted from audio and transcripts of forensic interviews,
we are able to substantially outperform conventional deception detection
methods and a number of simulated baselines. Our results suggest that
a child's use of concreteness and imageability in their language are strong
psycholinguistic indicators of truth-telling and that the coordination of child
and interviewer speech signals is much more informative than the specific
language used throughout the interview.

Mulcahy on Online Criminal Trials

Linda Mulcahy (Centre for Socio-Legal Studies) has posted Virtual Poverty? What Happens when Criminal Trials Go Online? (in Dave Cowan and Ann Mumford (eds) Pandemic Legalities: Legal Responses to COVID-19 – Justice and Social Responsibility (University of Bristol Press Law, Society, Policy Series 2021 (Forthcoming)) on SSRN. Here is the abstract:

 

The challenge posed by the editors of this collection is for authors to reflect on what good can come out of the pandemic. This is far from easy to address in the context of ever more evidence of a divided polity, but this chapter will look at the rapid rise in the use of video hearings caused by the pandemic and their potential to improve the lot of the poor. Academics, including myself, have been sceptical about the extent to which the needs of lay users and open justice are served when technology is used to circumvent the need for everyone to come to a physical court. What is different about developments during the pandemic is that they have prompted experiments in which everyone including elite legal actors have been forced online and made to reflect on the experience. In the sections which follow I outline developments to date before going on to consider the extent to which totally online trials have the potential to create a more level playing field in the criminal justice system. In doing so I argue that there is a danger that critics of the use of technology are in danger of romanticising physical courthouses as places which are better at dignifying lay users of the justice system or encouraging their participation.

Hanan on Talking Back in Court

Eve Hanan (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Talking Back in Court (Washington Law Review, Vol. 96, No. 2, 2021) on SSRN. Here is the abstract:

 

People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court. In individual cases, talking back could result in fairer outcomes. On a systemic level, talking back could bring much needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.

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Roach on Trial by Jury

Kent Roach (University of Toronto - Faculty of Law) has posted Trial by Jury and the Toronto 18 ((2021) 44 Manitoba Law Journal 221) on SSRN. Here is the abstract:

 

This chapter examines the trial of Fahim Ahmad, Steven Chand, and Asad Ansari, which was the only jury trial in the Toronto 18 prosecutions and the first held under post 9/11 terrorism offences. Part II examines the role of juries in past national security trials. These include those that occurred after the 1837 rebellions; after the assassination of D’Arcy McGhee; after the 1885 M tis resistance; after the Winnipeg General Strike; and after the October Crisis of 1970. The third part examines the public record of the Toronto 18 jury trial, including decisions about what questions could and could not be asked by the accused about potential jurors and the decision to require the three accused to stand in the prisoner’s dock. Part IV examines the future of jury trials in terrorism cases in light of the exploration of this topic by the Air India commission and 2019 reforms to jury selection. Although the jury is often conceived as a shield for the individual from the state, it can also be a sword that the state can wield against unpopular accused. Sometimes unpopular accused may be better off selecting, if they can, trial by judge alone.

Berry on Eighth Amendment Proportionality

William W. Berry (University of Mississippi School of Law) has posted The Evolving Standards, As Applied on SSRN. Here is the abstract:

 

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility—that the defendant is beyond hope of rehabilitation—as a prerequisite to imposing a JLWOP sentence.

In dicta, the Court suggested that Jones could have made an individual as-applied challenge to his sentence under the Eighth Amendment by claiming that his JLWOP sentence was disproportionate to the crime he committed. While the Court has used a narrow disproportionality standard in non-capital, non-JLWOP cases, it is not clear what standard would apply to individual as-applied Eighth Amendment challenges in capital and JLWOP cases. The Court customarily reviews such cases categorically under a heightened evolving standards of decency standard, which suggests that an individual as-applied challenge would also merit some heightened level of review.

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Bronsther on Limiting Retributivists

Jacob Bronsther has posted The Limits of Retributivism (24 New Criminal Law Review 301 (2021)) on SSRN. Here is the abstract:

"Limiting retributivists” believe that the vagueness of retributive proportionality represents a moral opportunity. They maintain that the state can permissibly harm an offender for the sake of crime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively “not undeserved” punishments. However, in this essay, I argue that retributivism can justify only the least harmful sentence within such a range. To impose a sentence beyond this minimum would be cruel from a retributive perspective. It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends. Thus, if our nonretributive policy aims required a harsher sentence, the offender’s retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible.

"Texas Begins Jailing Border Crossers On Trespassing Charges"

From NPR, via NACDL's news-of-interest:

Since first announcing earlier this summer that Texas would begin charging migrants with state crimes, Abbott has said law enforcement would not be involved in "catch and release" and said those arrested would spend time behind bars. But Martinez said he would handle the cases same as usually does, which typically means offering time served.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Neuroscience and the Model Penal Code's Mens Rea Categories Andreas Kuersten and John D. Medaglia Georgetown University - Center for Clinical Bioethics and Assistant Professor Date Posted: 28 May 2021	227
2.	Constraining Criminal Laws F. Andrew Hessick and Carissa Byrne Hessick University of North Carolina School of Law and University of North Carolina School of Law Date Posted: 28 Apr 2021	189
3.	Vicarious Liability for AI Mihailis Diamantis University of Iowa - College of Law Date Posted: 24 May 2021	160
4.	Mala Prohibita and Proportionality Youngjae Lee Fordham University School of Law Date Posted: 24 May 2021 [5th last week]	67
5.	Testimony to the Belgian Parliament Regarding the Islamic State's Genocide Against the Yezidi Zachary D. Kaufman University of Houston Law Center Date Posted: 15 Jun 2021 [6th last week]	62
6.	The California Act to Save [Black] Lives? Race, Policing, and the Interest Convergence Dilemma in the State of California Eliana Machefsky University of California, Berkeley - School of Law Date Posted: 19 Apr 2021 [8th last week]	36
7.	Sexual Dignity in Rape Law Anna High University of Otago - Faculty of Law Date Posted: 30 Jun 2021 [new to top ten]	23
8.	Marital Rape in India: A Critical Study Dr. Raj Kumar Yadav and Manish Dalal Faculty of Law, Baba Mast Nath University and Faculty of Law, Baba Mast Nath University Date Posted: 27 May 2021 [new to top ten]	22
9.	The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020 Margaret Colgate Love and David Schlussel Law Office of Margaret Love and Collateral Consequences Resource Center Date Posted: 23 Jun 2021 [10th last week]	21
10.	Multilayered Criminal (F)laws Michael T. Cahill Brooklyn Law School Date Posted: 25 Jun 2021 [new to top ten]	16

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Section 24(2) in the Trial Courts: An Empirical Analysis of the Legal and Non-legal Determinants of Excluding Unconstitutionally Obtained Evidence in Canada Steven Penney and Moin A. Yahya University of Alberta - Faculty of Law and University of Alberta - Faculty of Law Date Posted: 27 May 2021 [2nd last week]	137
2.	Content Moderation as Surveillance Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 30 Jun 2021 [new to top ten]	121
3.	Procedural Categories Ramon Feldbrin University of Chicago Law School Date Posted: 28 May 2021 [4th last week]	99
4.	Drug Supervision Jacob Schuman The Pennsylvania State University (University Park) – Penn State Law Date Posted: 11 May 2021 [6th last week]	74
5.	Re-adoption by the European Commission of Cartel Decisions Annulled on Procedural Grounds by the EU Courts Wouter P. J. Wils King's College London - The Dickson Poon School of Law Date Posted: 27 Apr 2021 [7th last week]	71
6.	In Re: Expeditious Trial of Cases U/S 138 of N.I. Act, 1881 – a Welcome Judgment Muluguri Srinivas Department of Law Date Posted: 14 May 2021 [9th last week]	62
7.	The Puzzle of Clearance Rates, and What They Can Tell Us About Crime, Police Reform, and Criminal Justice Andrew D. Leipold University of Illinois College of Law Date Posted: 10 Jun 2021 [10th last week]	53
8.	Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 25 Jun 2021 [new to top ten]	52
9.	Handling Aggravating Facts after Blakely: Findings from Five Presumptive-guidelines States Nancy J. King Vanderbilt University - Law School Date Posted: 27 Apr 2021 [new to top ten]	47
10.	Against Geofences Haley Amster and Brett Diehl Stanford Law School and Stanford Law School Date Posted: 28 Apr 2021 [new to top ten]	47

"Tom Barrack, Trump’s friend and fund-raiser, is freed on $250 million bond."

From The New York Times:

The seven-count indictment unveiled this week accused Mr. Barrack of using his access to former President Donald J. Trump to advance the foreign policy goals of the United Arab Emirates, and then repeatedly misleading federal agents.

Federal prosecutors said Mr. Barrack had used his position as an outside adviser to Mr. Trump’s campaign to publicly promote the Emirates’ agenda while soliciting direction, feedback and talking points from senior Emirati officials.

Once Mr. Trump was elected, they said, Mr. Barrack invited senior Emirati officials to give him a “wish list” of foreign policy actions they wanted Washington to take within the first 100 days, first six months and first year of Mr. Trump’s term, and by the end of it, prosecutors said.

"Biden gives victims of crime a boost"

From Courthouse News Service, via NACDL's news-of-interest:

The revised act signed Thursday piles new funding into victim compensation programs for all 50 states. That means victims who find themselves struggling to pay for critical services in the wake of their trauma can receive financial assistance for things like counseling services. The fund can also go toward replenishing wage earnings that victims might have lost as a result of the crimes committed against them.

Morgan on Disability Studies

Jamelia Morgan (University of California, Irvine School of Law) has posted Why Disability Studies in Criminal Law and Procedure? (Journal of Legal Education, 2021, forthcoming) on SSRN. Here is the abstract:

 

In recent years, police violence against disabled people has been a source of increased public attention and alarm. By some accounts, anywhere from twenty percent to over half of the people killed each year by law enforcement have at least one disability. Disabled people comprise a high proportion of incarcerated people, making up at least thirty percent of state prisoners and forty percent of detainees in jails. Yet, despite these vulnerabilities to criminalization, police violence, and incarceration, in-depth discussions on disability are relatively limited in law school courses on criminal law and criminal procedure. In this essay, I offer some ideas for how law professors can incorporate critical discussions of disability into their substantive criminal law and criminal procedure courses. Drawing from insights from Disability Studies and Critical Disability Theory, I show how law professors seeking to equip their students with tools for examining the limits of legal protections and provide students with a broader scope of the harms of the criminal legal system can incorporate disability as a lens for legal analysis.

Thomas on Corporate Sentencing

W. Robert (Will) Thomas (University of Michigan Ross School of Business) has posted The Conventional Problem with Corporate Sentencing (and One Unconventional Solution) (24 New Criminal Law Review 397 (2021)) on SSRN. Here is the abstract:

 

A recent wave of expressive defenses of corporate criminal law all promise that corporate punishment can express a unique form of condemnation not capturable through civil enforcement. Unfortunately, the realities of corporate sentencing have thus far failed to make good on this expressive promise. Corporate punishment derives its stigmatic force from preexisting norms and conventions, which inform the public meanings assigned to individual punishments. Viewed against this backdrop, corporate sentences rarely impose hard treatment in a manner or degree that these social conventions seem to require. First, monetary sanctions are generally poor candidates for expressing criminal condemnation because they tend to be difficult to distinguish from civil penalties. And although this expressive ambiguity can be overcome in principle, in practice the closer we inspect sentencing practices surrounding corporate fines, the worse this problem looks.

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O'Connor et al. on Detecting Children's Lies

Alison O'Connor, Thomas D. Lyon, Micaela Wiens and Angela D. Evans (Brock University, University of Southern California Gould School of Law, Brock University and Institute of Child Study (Brock University)) have posted Use of global trait cues helps to explain older adults' decrements in detecting children's lies (In press, Legal and Criminological Psychology) on SSRN. Here is the abstract:

 

Purpose: Previous research has established that lie-detection accuracy decreases with age; however, various mechanisms for this effect have yet to be explored, particularly when examining the detection of children’s lies. The present study investigated if younger and older adults detect children’s lies using different cues (verbal-content, verbal-auditory, non-verbal, global traits) to explore if cue usage may help to explain this age-related decline. Method: A total of 100 younger (18-30 years) and 100 older adults (66-89 years) watched child interview videos (half were truth-tellers; half were lie-tellers coached to conceal a transgression). Participants provided veracity judgments (truth vs. lie) and described the cues that they relied on to make their judgments. Results: Older adults used marginally significantly fewer verbal-content and significantly more global trait cues compared to younger adults. The use of global trait cues partially mediated the age-related decline in detection accuracy. Conclusion: These results present a partial mechanism for the age-related decline in deception detection. This can inform psychological theory on how aging affects perceptions of child witnesses and deception detection abilities.

Levin on Carceral Progressivism and Animal Victims

Benjamin Levin (University of Colorado Law School) has posted Carceral Progressivism and Animal Victims (Carceral Logics: Human Incarceration and Animal Confinement (Lori Gruen & Justin Marceau, eds.) (forthcoming Cambridge University Press 2021)) on SSRN. Here is the abstract:

 

This chapter places the criminalization of harm to non-human animals within a larger context of left and progressive efforts to use criminal law to address social problems. This chapter treats the animal welfare movement’s turn to criminal legal solutions as a case study of the broader phenomenon of “carceral progressivism.” Specifically, the chapter identifies this case study as reflecting two particularly common features of left or progressive criminalization projects: (1) the presence of a particularly vulnerable class of victims; and (2) the claim that criminal law can send a message about society’s respect for that class of victims and condemnation of harm done to them. Ultimately, the chapter argues that carceral progressivism – despite its ostensibly egalitarian or left commitments – risks reinscribing and legitimating the evils of the carceral state.

Green on Formal and Substantive Equality in Algorithmic Fairness

Ben Green (University of Michigan at Ann Arbor - Society of Fellows) has posted Impossibility of What? Formal and Substantive Equality in Algorithmic Fairness on SSRN. Here is the abstract:

 

In the face of compounding crises of social and economic inequality, many have turned to algorithmic decision-making to achieve greater fairness in society. As these efforts intensify, reasoning within the burgeoning field of “algorithmic fairness” increasingly shapes how fairness manifests in practice. This paper interrogates whether algorithmic fairness provides the appropriate conceptual and practical tools for enhancing social equality. I argue that the dominant, “formal” approach to algorithmic fairness is ill-equipped as a framework for pursuing equality, as its narrow frame of analysis generates restrictive approaches to reform. In light of these shortcomings, I propose an alternative: a “substantive” approach to algorithmic fairness that centers opposition to social hierarchies and provides a more expansive analysis of how to address inequality. This substantive approach enables more fruitful theorizing about the role of algorithms in combatting oppression. The distinction between formal and substantive algorithmic fairness is exemplified by each approach’s responses to the “impossibility of fairness” (an incompatibility between mathematical definitions of algorithmic fairness). While the formal approach requires us to accept the “impossibility of fairness” as a harsh limit on efforts to enhance equality, the substantive approach allows us to escape the “impossibility of fairness” by suggesting reforms that are not subject to this false dilemma and that are better equipped to ameliorate conditions of social oppression.