CrimProf Blog

Nielson & Stancil on Cert-Proofing and Qualified Immunity

Aaron L. Nielson and Paul J. Stancil (Brigham Young University - J. Reuben Clark Law School and Brigham Young University, J. Reuben Clark Law School) have posted Civil Rights Litigation in the Lower Courts: The Justice Barrett Edition (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

 

Now that Justice Amy Coney Barrett has joined the United States Supreme Court, most observers predict the law will shift on many issues. This common view presumably contains at least some truth. The conventional wisdom, however, overlooks something important: the Supreme Court’s ability to shift the law is constrained by the cases presented to it and how they are presented. Lower courts are thus an important part of the equation.

Elsewhere, the authors have offered a model of certiorari to demonstrate how lower courts in theory can design their decisions to evade Supreme Court review; they also explain why such “cert-proofing” tools are problematic. In this Article, they apply that model to civil rights litigation involving qualified immunity, with particular focus on Justice Barrett’s confirmation.

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Eliot on AI and Effective Assistance

Dr. Lance B. Eliot (Stanford Center for Legal Informatics) has posted AI Anticipated Impacts On The Sixth Amendment Effective Counsel Provision on SSRN. Here is the abstract:

 

The U.S. Constitution mandates the assistance of legal counsel for criminal defendants. Meanwhile, relevant Supreme Court decisions have clarified that such legal counsel must be effective and that when legal counsel is ineffective there are opportunities to overturn case results. Consider how the question of effectiveness might be altered in an era of AI-based legal reasoning systems.

Perlin on Dylan's "Hurricane" and Criminal Procedure

Michael L. Perlin (New York Law School) has posted “Pistol Shots Ring Out in the Barroom Night”: Bob Dylan's “Hurricane” as an Exam (or Course) in Criminal Procedure (American Journal of Criminal Law, Vol. 48, No. 2, 2021) on SSRN. Here is the abstract:

 

A lyrical analysis relevant to Criminal Procedure.

"Court Upholds "Geofence" Warrant for Information on Which Phones Were Near a Crime"

Eugene Volokh excerpts this opinion at The Volokh Conspiracy. From the excerpt:

 

Imagine a homicide in an alley caught on a nearby surveillance camera. The video is clear enough to see the attack, but too grainy to identify who did it. It is obvious from the video, however, that the perpetrator is checking his cell phone as he walks out of the alley. Having determined the location and time of the killing from the video, would it be lawful for the police to obtain a warrant leveraging the tracking capability of mobile devices to identify whose cell phone was in the area of the crime when it occurred? On October 6, 2021, the Court was presented with a warrant that asked that question, albeit not in a homicide case. {The Court granted the government's request to seal the warrant application because the criminal investigation is not public and revealing the existence of the warrant could adversely impact the government's investigation, including by causing the subjects of the investigation to flee or destroy evidence. Accordingly, the public version of this memorandum opinion will not disclose facts that may identify the government's investigation or the targets of it.}

 

 

 

Reznik on Self-Defense

Rafi Reznik has posted Taking a Break from Self-Defense on SSRN. Here is the abstract:

Legal theory has failed to acknowledge how central a concept self-defense is for the construction of American identities. Across demographic and ideological divides and throughout American history, self-defense has functioned as a mechanism to assert self-worth. This Article argues that this is an insidious baggage for self-defense to carry and that we would be better to jettison rather than claim it. The argument is grounded in an analysis of various manifestations of the American self-defensive culture. In law, these include developments in penal codes, constitutional criminal law, gun laws, procedural rules, the law of police, and prison law and policy. This compound proactively incites persons under all colors of law to seize opportunities to exercise self-defense, assigns virtuousness to self-defensive achievements, and augments their effectiveness. Thus, the contemporary ubiquity of self-defense serves to articulate, distribute, and breed aggression, re-legitimizing violence through the back door. Under this light, the Article suggests a moratorium on the idea that self-defense is a justification for violence.

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"As the jury deliberates Elizabeth Holmes' fate, experts say 'fraud is complicated'"

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

But Holmes' side of the story adds complexity to what the government is trying to sell to jurors. She took a gamble and testified over seven days. It is rare for a defendant in a white-collar criminal case to take the witness stand because that exposes them to sometimes withering cross-examination from the government.

Holmes, though, had an impressive performance, legal experts say. As she testified, she was focused and thorough. She said that company responsibility was shared by other managers and deputies. Looking back, she said, she wishes she would have handled many things differently, like getting the consent of pharmaceutical companies before affixing their logos on reports validating Theranos technology and not retaliating against ex-employees who blew the whistle on the company.

Freeman on Unlawfully Obtained Digital Evidence

Lindsay Freeman (Human Rights Center, UC Berkeley School of Law) has posted an abstract of Hacked and Leaked: Legal Issues Arising From the Use of Unlawfully Obtained Digital Evidence in International Criminal Cases (UCLA Journal of International Law and Foreign Affairs, Vol. 25, No. 2, 2021) on SSRN. Here is the abstract:

 

Digital open source investigations—the use of publicly available information on the internet for intelligence, leads, or evidence—are becoming an increasingly critical part of international criminal investigations. While the definition of open source information is simple, there are several categories of information that fall into a gray area between private and public—in particular, the growing amount of illegally hacked and leaked information on the web. Online leaks, whether the result of hack-ing or whistleblowing, fit the definition of open source information. Yet, there is something inherently different about information in the public domain that was not intended to be public. The dissemination of incriminating information unlawfully obtained by a third party creates a complex situation in which, on one hand, the illegal method of acquisition should not be rewarded, while at the same time, the illegal acts that are exposed in the documents should not go unpunished. The public interest can cut both ways. What are the rules and practical implications of using this information in criminal investigations or, more importantly, criminal trials? By examining specific hacks and leaks, describing their relevance to international criminal cases, and identifying the applicable evidentiary rules, this Article explores the challenges to admitting hacked and leaked digital documents into evidence.

"Pennsylvania Supreme Court strikes down victims’ rights constitutional amendment"

From Jurist:

The Pennsylvania Supreme Court in a 6-1 decision Tuesday affirmed the Commonwealth Court’s judgment stating:

the Victim’s Rights Amendment was, in actuality, a collection of amendments which added a multiplicity of new rights to our Constitution, and, because those new rights were not interrelated in purpose and function, the manner in which it was presented to the voters denied them their right to consider and vote on each change separately, as Article XI, § 1 mandates…In our view, it is manifest that these separate new rights are not dependent on each other to be effective. To cite but a few examples, the right of a victim to restitution does not depend on the right of the victim to be informed of, and to participate in, parole proceedings. The right of a victim to be treated with respect for his or her privacy does not depend on the right of a victim to be heard in proceedings involving release, plea, sentencing, disposition, parole and pardon. In short, they are not functionally interrelated. Indeed, we can easily envision a voter supporting one or more of these rights without approving of all of them. Consequently, Article XI, § 1 required the voters to have been given the opportunity to vote separately on each of them.

"Can AI really predict crime?"

From The Guardian, via NACDL's news-of-interest:

In 2011, the Los Angeles police department rolled out a novel approach to policing called Operation Laser. Laser – which stood for Los Angeles Strategic Extraction and Restoration – was the first predictive policing programme of its kind in the US, allowing the LAPD to use historical data to predict with laser precision (hence the name) where future crimes might be committed and who might commit them.

But it was all but precise. The programme used historical crime data like arrests, calls for service, field interview cards – which police filled out with identifying information every time they stopped someone regardless of the reason – and more to map out “problem areas” for officers to focus their efforts on or assign criminal risk scores to individuals. Information collected during these policing efforts was fed into computer software that further helped automate the department’s crime-prediction efforts. The picture of crime that the software presented, activist groups like the Stop LAPD Spying Coalition argue, simply validated existing policing patterns and decisions, inherently criminalising locations and people based on a controversial hypothesis (ie, that where crimes have once occurred they will occur again).

Oberg on The Emergency Brake in EU Criminal Policy

Jacob Öberg (Lund University- Faculty of Law) has posted Exit, Voice and Consensus - A Legal and Political Analysis of the Emergency Brake in EU Criminal Policy (European Law blog, 11th October 2021) on SSRN. Here is the abstract:

 

This blog post presents a political and legal analysis of the emergency brake in criminal law in Articles 82(3) and 83(3) TFEU. It suggests that the emergency brake offers a powerful discretionary prerogative for Member States seeking to protect the integrity of their criminal justice systems. This strong legal shield for Member States in the form of a ‘quasi-veto’ is contrasted with a tendency to decision-making under the ‘shadow of the vote’, cautiously moving towards supranationalism. On the basis of general theories of Council decision-making and a comprehensive review of EU criminal law legislation adopted to date, the post argues that majority rule rather than general agreement appears to be the current driving force behind decision-making in EU criminal policy.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Moral Panic and the War on Drugs Phil Lord Lakehead University - Bora Laskin Faculty of Law Date Posted: 29 Nov 2021	170
2.	Bloody Lucre: Carceral Labor and Prison Profit Laura I Appleman Willamette University College of Law Date Posted: 27 Oct 2021	146
3.	Challenging Domestic Injustice Through International Human Rights Advocacy: Addressing Homelessness in The United States Eric Tars, Tamar Ezer, Melanie Ng, David Stuzin and Conor Arevalo National Law Center on Homelessness and Poverty, University of Miami - School of Law, University of Miami - School of Law, University of Miami - School of Law and University of Miami - School of Law Date Posted: 26 Oct 2021	80
4.	Is there a Rational Basis for NH's War on Marijuana Anymore? Michael Lewis and Cassandra Moran Rath, Young and Pignatelli and Independent Date Posted: 28 Oct 2021	74
5.	A Restatement of Corporate Criminal Liability's Theory and Research Agenda Samuel W. Buell Duke University School of Law Date Posted: 08 Dec 2021 [6th last week]	60
6.	Deconstructing Victim and Offender Identities in Discourses on Child Sexual Abuse: Hierarchies, Blame and the Good/Evil Dialectic Anne-Marie McAlinden Queen's University Belfast - School of Law Date Posted: 13 Sep 2018 [new to top ten]	58
7.	Enforcement of Public Carry Restrictions: Texas as a Case Study Brennan Rivas The Newberry Library Date Posted: 07 Dec 2021 [new to top ten]	47
8.	Suffering at the Margins: Applying Disability Critical Race Studies to Human Trafficking in the United States Rachel Rein Columbia University, School of Law Date Posted: 29 Oct 2021 [5th last week]	44
9.	Rape and Law in Medieval Western Europe Gwen Seabourne University of Bristol Law School Date Posted: 18 Nov 2021 [10th last week]	44
10.	The Forlorn Hope: A Final Attempt to Storm the Fortress of Corporate Criminal Liability John Hasnas Georgetown University - Robert Emmett McDonough School of Business Date Posted: 24 Nov 2021 [9th last week]	37

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Buying Data and the Fourth Amendment Orin S. Kerr University of California, Berkeley School of Law Date Posted: 08 Jul 2021	289
2.	Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence Keith A. Findley, Camila Angulo Amaya, Gibson Hatch and John Smith University of Wisconsin Law School, University of Wisconsin - Madison - Department of Political Science, affiliation not provided to SSRN and University of Wisconsin Law School Date Posted: 18 Oct 2021	168
3.	Preservation Letters and Fourth Amendment Seizures: A Response to Professor Kerr Michael L Levy University of Pennsylvania Carey Law School - Student/Alumni/Adjunct Date Posted: 01 Dec 2021 [new to top ten]	164
4.	The Bailable v. Non-Bailable Classification in Indian Criminal Procedure Abhinav Sekhri Delhi High Court Date Posted: 08 Jul 2021 [3rd last week]	143
5.	Grounding Legal Proof Michael S. Pardo Georgetown University Law Center Date Posted: 10 Sep 2021 [4th last week]	110
6.	The Danger of Rigged Algorithms: Evidence from Immigration Detention Decisions David Hausman Stanford University, Department of Political Science Date Posted: 08 Jul 2021	90
7.	Black Voices Matter Too: Counter-Narrating Smithers v The Queen Amar Khoday University of Manitoba - Faculty of Law Date Posted: 10 Dec 2021	90
8.	The Tesla Meets the Fourth Amendment Adam M. Gershowitz William & Mary Law School Date Posted: 18 Nov 2021 [9th last week]	90
9.	Criminal Justice Secrets Meghan J. Ryan Southern Methodist University - Dedman School of Law Date Posted: 31 Oct 2021 [new to top ten]	86
10.	Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System Anna D. Vaynman and Mark Robert Fondacaro John Jay College - CUNY Graduate Center and John Jay College - CUNY Graduate Center Date Posted: 16 Nov 2021 [8th last week]	86

Zhang on Confusion in Felon Disenfranchisement

Emily Rong Zhang (Stanford University, Department of Political Science) has posted New Tricks for an Old Dog: Deterring the Vote Through Confusion in Felon Disenfranchisement (Missouri Law Review, Vol. 84, No. 4, 2019) on SSRN. Here is the abstract:

 

Felon disenfranchisement laws do not just disenfranchise. They also confuse. By imposing heavy penalties for failing to correctly navigate complex provisions, these statutes confuse eligible voters and discourage them from exercising their right to vote. In this way, felon disenfranchisement laws resemble modern voter suppression laws: they deter eligible voters from voting. Modest reforms can and should be implemented to affirmatively inform formerly incarcerated individuals of their restored voting rights.

du Bois-Pedain on Racially Targeted Clemency

Antje du Bois-Pedain (University of Cambridge, Faculty of Law) has posted Mass Incarceration, Penal Moderation, and Black Prisoners Serving Very Long Sentences: The Case for a Targeted Clemency Program (24 New Criminal Law Review 655 (2021)) on SSRN. Here is the abstract:

 

The prevalent criminal justice practices in the US have produced levels and patterns of incarceration that fewer and fewer politicians, scholars and citizens care to support. There seems to be widespread consensus that the system is indicted as unjust by its outcomes no matter how these outcomes came about. But if that is so, how can it be turned back? Who should be eligible for release, and on what grounds? This article addresses the position of black prisoners serving very long sentences. Many of these prisoners are at risk of missing out under current legislative and administrative proposals designed to reduce overall levels of imprisonment. Partly this is due to the fact that the wrong of mass incarceration is often understood as a wrong suffered at the collective level by what has come to be referred to as overpunished communities.

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Prendergast on A Retreat from Subjectivism?

David Prendergast (School of Law, Trinity College Dublin) has posted Recent developments in criminal defences and mens rea: a retreat from subjectivism? (Criminal Law: recent developments and trends) on SSRN. Here is the abstract:

 

This paper focuses on some legislative and judicial developments in recent years pertaining to mental elements in crimes (mens rea) and affirmative defences such as provocation. The trend identified is a limited retreat from strong subjectivism. By strong subjectivism is meant the idea that only intention, knowledge and advertent recklessness are appropriate as mens rea in serious offences and that criminal defences should be substantially subjectivist-leaning in that they minimise evaluation of the defendant’s conduct by reference to objective standards. More specifically the paper:
i. Analyses a retreat (of sorts) from strong subjectivism in the offences of sexual activity with children and vulnerable adults in the Criminal Law (Sexual Offences) Act 2017.

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Ponomarenko on Police, Homelessness, and Fragmented Responsibility

Maria Ponomarenko (University of MInnesota School of Law) has posted Our Fragmented Approach to Public Safety (American Criminal Law Review, 2022) on SSRN. Here is the abstract:

 

This Essay explores the ways in which the division of funding and responsibility for various social services across local, state, and federal governments disincentivizes sound approaches to societal problems—particularly when it comes to addressing the needs of the unhoused. Whereas local governments primarily are responsible for funding and directing the police, most other services, including housing, healthcare, and substance abuse treatment, are funded and overseen by other government units. This Essay demonstrates how this fragmentation of authority has contributed to society’s overreliance on policing and criminal punishment in addressing the problem of homelessness. First, because fiscal responsibility for various government services is distributed across the various levels of government, no one government unit may have the financial incentive to depart from the more punitive status quo. Second, fragmentation creates a familiar sort of collective action problem: Unless all of the municipalities in a particular region step up to do their part, the few who do may find themselves carrying the burden for the region as a whole. Finally, even if all of the actors at various levels of government were equally invested in pursuing a more humane and cost-effective approach, fragmentation makes it more difficult to mount a coordinated response to problems that invariably spill over across jurisdictions and policy domains. This Essay concludes by pointing out that fragmentation may, if anything, be of still greater concern when it comes to the broader project of reimagining public safety and redefining the role of the police.

Richards on Digital Civil Liberties

Neil M. Richards (Washington University School of Law) has posted Digital Civil Liberties and the Translation Problem (Oxford Handbook of Criminal Process (Darryl K. Brown et al., eds. 2019)) on SSRN. Here is the abstract:

 

Legal rules must always confront the problem of change. Law seeks to establish settled legal rules to apply in the future, but this goal is inevitably and constantly frustrated by the fact that human societies are not stable. Perhaps nothing illustrates this phenomenon more clearly than the ways in which criminal procedure rules have struggled to adapt in recent years to the enormous disruption of legal rules by digital technologies—computers, the internet, mobile and “smart” phones, and the Internet of Things. These new technologies promise tremendous improvements in the quality of human life, while also threatening ubiquitous surveillance, the end of the middle class, and a widening gulf between rich and poor. Courts have long worked to adapt constitutional rules to new technological and social contexts, but emerging technologies may present the most daunting challenges yet. In a very real sense, the future of our civil liberties will be determined by how well we translate them into digital formats.

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Oberman on Criminalizing Abortion

Michelle Oberman (Santa Clara University - School of Law) has posted The Six Functions of Abortion Law on SSRN. Here is the abstract:

The US Supreme Court appears ready to permit states to re-criminalize abortion. When the “law on the books” changes in the United States, what might the “law on the ground” look like? One answer lies in examining what happens today, in countries with restrictive abortion laws. Israel’s 1977 law bars abortion unless approved by a “pregnancy termination committee.” Drawing on interviews with committee members, lawmakers, advocates and others, this Article presents an ethnographic study of one country’s experience with a law criminalizing abortion.

Israel’s approach, limiting abortion access to those with qualifying conditions, is likely to be in play for some U.S. states in the years to come. But the significance of Israel’s experience lies beyond what it teaches us about the choices and challenges surrounding the implementation and enforcement of a restrictive abortion law. It surfaces vital questions about what abortion laws actually accomplish—questions this Article answers by identifying six distinct functions of abortion laws: criminal sanction, market-structuring force, informal adjudicatory process, shame sanction, expressive function, and truce. This Article describes these functions in turn, first considering the ways in which each one manifests in Israel, and then exploring the implications for U.S. states intent on recriminalizing abortion. The upshot is this: each of these functions brings into precise focus the ways in which forthcoming U.S. abortion crimes, on the ground, will necessarily struggle and fail to be seen as legitimate exercises of state authority.

Conklin on "Victims" and the Rittenhouse Verdict

Michael Conklin (Angelo State University - Business Law) has posted ‘Victim’ or ‘The Deceased’: Why Kyle Rittenhouse’s Verdict Could Depend on the Distinction (HARV. L. REV. BLOG (November 9, 2021)) on SSRN. Here is the abstract:

 

The decision of the judge in the Kyle Rittenhouse trial to bar the prosecution from referring to the people he shot as “victims” has sparked debate. This Essay discusses the significance of this distinction as researched in a recent study.

Arlen on Capture and Corporate Criminal Liability

Jennifer Arlen (New York University School of Law) has posted Countering Capture: A Political Theory of Corporate Criminal Liability on SSRN. Here is the abstract:

 

Governments cannot effectively deter corporate crime unless individual wrongdoers and corporations are liable for corporate misconduct. Yet leading scholars claim corporation need not be criminally liable because corporate civil liability is sufficient. Civil and criminal liability are equally effective, they argue, because they can impose the same sanctions: monetary penalties and collateral sanctions. Yet enforcement effectiveness does not turn on sanctioning ability alone. It also depends on enforcement officials’ willingness and ability to enforce. This Article shows that eliminating federal corporate criminal liability would undermine deterrence because large corporations would be better able to leverage their political influence over Congress and the White House to reduce corporate enforcement absent corporate criminal liability. Civil enforcement is more vulnerable to political influence channeled through Congress and the White House than criminal enforcement. In addition, civil enforcement would be less effective because eliminating corporate criminal enforcement would leave civil enforcement more vulnerable to companies’ political influence, less effective, and less likely to pursue individual wrongdoers.