CrimProf Blog

"Anti-Crime Checkpoints in Jackson, Mississippi, Blatantly Violate the Fourth Amendment"

JACOB SULLUM has this post at Reason:

According to Jackson Police Chief James Davis, his department's "Ticket, Arrest, Tow" (TAT) program has precisely the aim that the Supreme Court said was constitutionally unacceptable. Davis, who says the program involves "administrative checkpoint[s] where we are looking for wanted individuals," bragged last week that "we done made over 100 felony arrests since we started in January."

. . .

The ACLU of Mississippi tried to explain that in a letter to Davis last Thursday. "It is established law that checkpoint programs that have the primary purpose of general crime control violate the Fourth Amendment," wrote the organization's legal director, Joshua Tom. "It is evident that the Checkpoint Initiative's stated primary purpose is general crime control. It is therefore unconstitutional under established federal law."

Albrecht & Nadler on Reader Responses to Crime News

Kat Albrecht and Janice Nadler (Criminology & Criminal Justice Department and Northwestern University - School of Law) have posted Assigning Punishment: Reader Responses to Crime News (13 FRONTIERS IN PSYCHOLOGY 1 (2022)) on SSRN. Here is the abstract:

 

In this study we test how the composition of crime news articles contributes to reader perceptions of the moral blameworthiness of vehicular homicide offenders. After employing a rigorous process to develop realistic experimental vignettes about vehicular homicide in Minnesota, we deploy a survey to test differential assignments of suggested punishment. We find that readers respond to having very little information by choosing neutral or mid-point levels of punishment, but increase recommended punishment based on information about morally charged conduct. By contrast, information about the perpetrator’s immigration status caused respondents to split into two groups on whether the offense deserves neutral or increased punishment. We find that political ideology strongly influences recommendations for more severe punishment when the immigration status of the perpetrator is revealed. We argue that this difference represents a moral dimension to punishment and blameworthiness that incorporates factors outside the active offense and therefore reveals the social influence of differential reporting in shaping public perception.

McJunkin on The Negative Right to Shelter

Ben A. McJunkin (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted The Negative Right to Shelter (California Law Review, Forthcoming) on SSRN. Here is the abstract:

 

For over forty years, scholars and advocates have responded to the criminalization of homelessness by calling for a “right to shelter.” As traditionally conceived, the right to shelter is a positive right—an enforceable entitlement to have the government provide or fund a temporary shelter bed for every homeless individual. However, traditional right-to-shelter efforts have failed. Despite the continuing prominence of right-to-shelter rhetoric, only four U.S. jurisdictions have embraced such a right. Moreover, the shelter systems in these states are troublingly inadequate, mired in administrative bureaucracy and cabined by strict eligibility limits. The right-to-shelter movement has even proven pernicious. Centering a positive right to shelter in the discourse surrounding homelessness has rendered the weaknesses in shelter offerings invisible, and courts increasingly reify temporary emergency shelters as a justification for criminalizing unsheltered homelessness.

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Pace on Alcohol and Marijuana Regulation

H. Justin Pace (Northwestern University - Pritzker School of Law; Western Carolina University - College of Business) has posted Convergence and Divergence of Alcohol and Marijuana Regulation in a Federalist System (Seton Hall Legislative Journal, Vol. 46, No. 3, 2022) on SSRN. Here is the abstract:

 

Marijuana prohibition ended in Canada in 2018 when marijuana was legalized at the federal level. Marijuana prohibition in the United States has de factor ended in a large percentage of states as marijuana has been legalized at the state level (even while it remains illegal under federal law). Alcohol prohibition ended in 1933 in the U.S. with the ratification of the Twenty-First Amendment. In each case, regulation was effectively left to sub-national units (states in the U.S. and provinces and territories in Canada). Regulation of alcohol in the U.S. and marijuana in Canada show divergence across sub-national units. Marijuana regulation across U.S. states, on the other hand, shows signs of convergence. This article argues the difference can be explained by a combination of interest group politics, path dependence, and, most importantly, a temporal effect.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Error Aversions and Due Process Brandon L. Garrett and Gregory Mitchell Duke University School of Law and University of Virginia School of Law Date Posted: 05 Jan 2022	297
2.	Life 'Or' Death Marlee Russell University of Mississippi Date Posted: 28 Jan 2022	251
3.	Focusing the CFAA in Van Buren Orin S. Kerr University of California, Berkeley School of Law Date Posted: 31 Jan 2022	205
4.	The Rise and Fall of Muruatetu: Revisiting Death Sentence in Kenya Ronald Bwana Mount Kenya University Parklands Law Campus Date Posted: 19 Jul 2021	194
5.	The Negative Right to Shelter Ben A. McJunkin Arizona State University (ASU) - Sandra Day O'Connor College of Law Date Posted: 19 Feb 2022 [new to top ten]	174
6.	The Rise and Fall and Rise Again of Informal Justice and the Death of ADR Amy J. Cohen Temple University Beasley School of Law Date Posted: 25 Jan 2022 [5th last week]	161
7.	The Constitutionality of Excluding Duress as a Defence to Murder Colton Fehr Simon Fraser University Date Posted: 25 Oct 2021 [6th last week]	136
8.	Organized Prime: Holding Amazon Responsible for its Sellers' Criminal Activity Kallen Dimitroff University of Texas at Austin, School of Law Date Posted: 26 Jan 2022 [7th last week]	82
9.	'That's Not a Knife . . .' Or Is It? Virginia's Problematic Concealed Weapons Law J. Alex Touchet Regent University, School of Law Date Posted: 28 Dec 2021 [8th last week]	57
10.	Recklessness Without the Risk David Prendergast School of Law, Trinity College Dublin Date Posted: 18 Aug 2021 [9th last week]	51

Next week's criminal law/procedure arguments

Issue summary is from ScotusBlog, which links to papers:

Tuesday

• Ruan v. U.S. : Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

Wednesday

• Egbert v. Boule: (1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Katz as Originalism Orin S. Kerr University of California, Berkeley School of Law Date Posted: 28 Jul 2021	697
2.	No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action Andrew Manuel Crespo Harvard Law School Date Posted: 11 Jan 2022	473
3.	Error Aversions and Due Process Brandon L. Garrett and Gregory Mitchell Duke University School of Law and University of Virginia School of Law Date Posted: 05 Jan 2022	296
4.	The Original Criminal Jury Jeff Hetzel Independent Date Posted: 22 Dec 2021	232
5.	Judicial Proceedings in Criminal Cases in Pakistan Muhammad Munir International Islamic University, Islamabad - Department of Law Date Posted: 13 Jan 2022 [6th last week]	127
6.	Models of Bail Reform Brandon L. Garrett Duke University School of Law Date Posted: 18 Nov 2021 [5th last week]	125
7.	Rectifying Wrongful Convictions Through the Dormant Grand Jury Clause Colin Miller University of South Carolina School of Law Date Posted: 28 Aug 2021	103
8.	Harm and Outcomes in the Orbit of Criminal Procedure Lee Kovarsky University of Texas School of Law Date Posted: 08 Feb 2022 [9th last week]	72
9.	Compensation for Wrongful Conviction and Incarceration in the United States Meghan J. Ryan Southern Methodist University - Dedman School of Law Date Posted: 11 Jan 2022 [8th last week]	62
10.	'Insanity Is Smashing up Against My Soul': The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman Michael L. Perlin and Talia Roitberg Harmon New York Law School and Niagara University Date Posted: 12 Jan 2022	58

Allen & Smiciklas on Aversion to Naked Statistics and Other Mistakes

Ronald J. Allen and Christopher Smiciklas (Northwestern University Pritzker School of Law and Independent) have posted The Law’s Aversion to Naked Statistics and Other Mistakes on SSRN. Here is the abstract:

 

A vast literature has developed probing the law’s general aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as U.S. law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems.

Alkon on Bargaining Without Bias

Cynthia Alkon (Texas A&M University School of Law) has posted Bargaining Without Bias (Rutgers Law Review, Vol. 73, No. 5, 2021) on SSRN. Here is the abstract:

 

Bias, disparate treatment, and racism are embedded into the U.S. criminal legal system. A key player within the criminal legal system who could dramatically reduce or eliminate these disparities are prosecutors. Prosecutors enjoy extraordinary power and they exercise that power with few constraints. For most defendants the single most important prosecutorial decision, after charging, is the plea offer. Yet, there are virtually no limitations on prosecutors during the plea bargaining stage and relatively little attention given to how standard plea bargaining practices can exacerbate bias. The prosecutor is the key decision maker and, unfortunately, standard prosecutorial practices can exacerbate the biases that are already embedded into the criminal legal system. There are multiple challenges that make it difficult for prosecutors to reduce or eliminate their biases. The first core problem is that plea bargaining is largely unsupervised and prosecutors have extraordinary power and virtually unlimited discretion in the process. Prosecutors regularly engage in hard bargaining tactics and there is no meaningful check on prosecutorial bias in deciding what offers to make on what cases. The second core problem is that plea bargaining can exacerbate racial disparities and bias. The third core problem is that once a case comes into the criminal legal system, and the case is charged, a prosecutor’s first offer acts as an anchor in the negotiation, regardless of whether the offer reflects bias. Unlike in other negotiation contexts, the defendant in a criminal case most often has no meaningful option to counter or walk away from the prosecutor’s offer.

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Anthony et al. on Indigenous Women in Australia

Thalia Anthony, Thalia Anthony, Gemma Sentance and Lorana Bartels (The University of Sydney Law SchoolUniversity of Technology Sydney, Faculty of Law, University of Technology Sydney (UTS) and Australian National University (ANU) - ANU Centre for Social Research and Methods) have posted Transcending Colonial Legacies: From Criminal Justice to Indigenous Women’s Healing (in L George et al, Neo-colonial criminal justice: The mass-imprisonment of Indigenous women, 2020, Palgrave, 103-131) on SSRN. Here is the abstract:

 

This chapter explores how institutional inter-generational trauma is perpetuated by criminal justice interventions into the lives of Indigenous women in Australia. We explain how incarceration, including in police watch-houses, prisons and youth detention, is a form of institutional violence for Indigenous women. Prisons coexist with other forms of institutional violence that constitute the colonial project, including the forced removal of Indigenous children and dispossession of land. We begin this chapter by illustrating how past and present colonial policies and practices have shaped Indigenous women’s lives. The chapter then examines the ways in which the criminal justice system characterises trauma to problematise and pathologise Indigenous women. The effect is to further institutionalise and traumatise Indigenous women, rather than facilitate healing. It calls for a shift away from institutional discourses of “trauma” and towards recognition of oppression, suffering and resistance. Alternative healing models are outlined in the final section. These models have been initiated by Indigenous organisations to build on women’s strengths in a holistic and self-determination framework. Unlike deficit-based institutional models that seek to “fix” Indigenous women, healing models are premised on recognising Indigenous women’s dignity and cultural standpoint. They harness Indigenous ways of doing, being and knowing (Sherwood, 2010, p. 56). This chapter concludes by suggesting that healing is also collective and involves the decolonisation of socio-economic-racial relationships.

Schuman on Criminal Violations

Jacob Schuman (The Pennsylvania State University (University Park) – Penn State Law) has posted Criminal Violations (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Violations of community supervision are major drivers of incarceration. Four million people are on probation, parole, or supervised release, and one-third of them will eventually be found in violation, sending 350,000 people to prison each year. To reduce incarceration rates, criminal-justice reformers have called to lower sentences for non-criminal “technical violations” like missed meetings, skipped curfews, etc.

In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes. Based on an original empirical study of U.S. Sentencing Commission data and an examination of federal caselaw, I make three novel observations. First, despite the popular focus on technical violations, criminal violations are the primary drivers of punishment via revocation of supervised release, accounting for two-thirds of the total prison time imposed. Second, while technical violations allow the government to punish non-criminal behavior, criminal violations give the government an additional justification for penalizing criminal conduct and an easier alternative to criminal prosecution. Third, the immigration crime of illegal reentry is the basis for as many as one-third of all felony violations, revealing that supervised release is not just a program of surveillance and support, but also a tool of immigration enforcement.

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Blondel on Criminal Federalism

Erin C. Blondel has posted The Structure of Criminal Federalism on SSRN. Here is the abstract:

Deciding which crimes should “go federal” is a core problem in federal criminal law and policy. Repeated efforts have failed to distinguish “federal” and “local” crimes and crime problems, while federal criminal law’s scope only seems to grow. I argue that federalism explains why identifying federal crimes has proven so elusive. Overlapping state and federal jurisdiction is not an accident or a federalism failure: it is how the federal criminal system was designed.

The states have the police power, which entrenches them on the front lines of criminal enforcement, broadly providing public safety and addressing most crime incidents. The feds don’t even try to compete; instead, they provide a second layer of enforcement, supplementing and correcting, but not supplanting, the states. That cooperative, complementary relationship has shaped how both systems operate and strongly restrains the scope of federal criminal enforcement.

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Sutton et al. on Dehumanizing Prosecutorial Narratives of Women and LGBTQ Prisoners

Jessica Sutton, John R. Mills, Jennifer Merrigan and Kristin Swain (Phillips Black, Inc., Phillips Black, Inc., Washington University School of Law and affiliation not provided to SSRN) have posted Death by Dehumanization: Prosecutorial Narratives of Death-Sentenced Women and LGBTQ Prisoners (St. John's Law Review , Forthcoming) on SSRN. Here is the abstract:

 

At the core of every capital sentencing proceeding is a guarantee that before condemning a person to die, the sentencer must consider the humanity and dignity of the individual facing the ultimate sanction. This principle—that “death is different” and, therefore, requires consideration of the “diverse frailties of humankind”—echoes throughout the Supreme Court’s Eighth Amendment jurisprudence. And yet courts are reluctant to remedy the devastating impact of prosecutorial arguments that dehumanize marginalized persons facing the death penalty, condemning these arguments while nevertheless “affirm[ing] resulting convictions based on procedural doctrines such as harmless error.”

These dehumanizing prosecutorial narratives are particularly problematic—and effective—when used against LGBTQ+ people, whose very identities have been criminalized, pathologized, and used as justification for condemning them to death. Dehumanizing stereotypes not only reinforce and leverage social biases as factors in aggravation, but also “other” LGBTQ+ defendants in such a way as to minimize the impact of mitigating evidence.

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Alschuler on Plea Bargaining and Mass Incarceration

Albert W. Alschuler (University of Chicago Law School) has posted Plea Bargaining and Mass Incarceration (New York University Annual Survey of American Law, Vol. 76, No. 2, at page 205 (2021)) on SSRN. Here is the abstract:

 

The United States, which imprisons a higher proportion of its population than any other nation, is also the nation most dependent on plea bargaining. This Article shows that plea bargaining was a major cause of mass incarceration. Bargaining not only increased the number of people sent to prison but also produced harsher sentences than would have existed in its absence.

American incarceration rates rose sharply just after the Supreme Court and the American Bar Association declared plea bargaining legitimate and beneficial. This Article shows how courts and legislatures then enhanced the power of prosecutors and how prosecutors used their power to charge more people with crimes, induce more guilty pleas, exact broader waivers of rights, and obtain more severe sentences.

Margulies et al. on Doctrine and Capital Punishment

Joseph Margulies, John H. Blume and Sheri Lynn Johnson (Cornell University, Cornell Law School and Cornell Law School) have posted Dead Right: A Cautionary Capital Punishment Tale (Columbia Human Rights Law Review, Vol. 53, No. 1, 2021) on SSRN. Here is the abstract:

 

At least 228 people executed in the modern era—or more than one in every seven—were right too soon. That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late. Roughly 30% of our total include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively. But the great majority of the people identified in our study raised claims based on doctrine that had already been clearly established by the Supreme Court. If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief. Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them. This resistance was particularly egregious in Texas and Florida. In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least 36. At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution. The result is a system that routinely kills people even when they are right.

Gao & Petrova on Rape Rates and Prostitution Laws

Huasheng Gao and Vanya Petrova (Fanhai International School of Finance, Fudan University and Fudan University) have posted To Be a John or a Rapist? Evidence from Prostitution Laws on SSRN. Here is the abstract:

 

We identify a causal effect of the liberalization and prohibition of commercial sex on rape rates, using the staggered legislative changes in European countries. We find that liberalizing prostitution leads to a significant decrease in rape rates, while prohibiting it does the opposite. These results are stronger when the rape under-reporting problem is less severe and when it is more difficult for men to obtain sex via marriage/partnership. We also provide the first evidence on the asymmetric effect of prostitution regulation on rape rates: The magnitude of prostitution prohibition is much larger than that of prostitution liberalization. Our placebo tests show that prostitution laws only affect rape and have no impact on non-sexual crimes. Overall, our results indicate that prostitution is a substitute for sexual violence and that the recent global trend of prohibiting commercial sex (especially the Nordic model) could have unforeseen consequences of proliferating sexual violence.

"Mayor Cantrell moves to reverse bans on facial recognition, predictive policing and other surveillance tech"

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

At the request of Mayor LaToya Cantrell, the New Orleans City Council introduced an ordinance on Thursday to severely roll back local restrictions on law enforcement surveillance that were put in place only 14 months ago.

The proposed ordinance, if passed, would largely reverse the council’s blanket bans on the use facial recognition and characteristic tracking software, which is similar to facial recognition but for identifying race, gender, outfits, vehicles, walking gait and other attributes. One provision also appears to walk back the city’s ban on predictive policing and cell-site simulators — which intercept and spy on cell phone calls — to locate people suspected of certain serious crimes. 

. . .

The current restrictions on surveillance were passed in December 2020, shortly after The Lens reported that the New Orleans Police Department was secretly using facial recognition, despite years of denials. Those restrictions, contained in an ordinance sponsored by then-Councilman and current District Attorney Jason Williams, represented the city’s first real attempt to regulate government surveillance at the local level.

Walker et al. on Precursor Crimes of Terrorism

Clive Walker, Mariona Llobet Anglí and Manuel Cancio Meliá (University of Leeds - Centre for Criminal Justice Studies (CCJS), Independent and Independent) have posted an abstract of Precursor Crimes of Terrorism: The Criminalisation of Terrorism Risk in Comparative Perspective - Introduction to Precursor Crimes of Terrorism (Edward Elgar, Cheltenham, 2022) on SSRN. Here is the abstract:

 

This introductory chapter to this illuminating book offers a timely assessment of the development and proliferation of precursor crimes of terrorism, exploring the functions and implications of these new expanding offences in different jurisdictions. In response to new forms modes and sources of terrorism, attempts to pre-empt potential attacks through precursor offences have emerged. In other chapters, this book examines not only the meanings and effectiveness of this approach, but also the threat challenges it poses posed to human rights and social and economic development. Featuring contributions from leading academic and practitioner experts in counter-terrorism law, the book covers the broad scope of activities tackled by these new legal interventions, including membership, collaboration, communications, training and financing. Taking a comparative approach which relies on extensive experience in various jurisdictions, including the UK and Spain, the chapters also discuss important related issues such as international cooperation, investigations and penology, offering insights into the context of policiesy and practices surrounding precursor crimes. The introductory chapter can be downloaded from the publisher's website.

Esoimeme on The Pandora Papers and Money Laundering Detection

Ehi Esoimeme has posted The Pandora Papers: How Anti-Money Laundering Procedures and Controls Should Have Flagged $300 Million Earlier on SSRN. Here is the abstract:

PURPOSE – This paper aims to discuss the risk-based policies, procedures, and controls reasonably designed to identify and minimize money laundering and other illicit financing risks associated with Non-profit Organizations.

DESIGN/METHODOLOGY/APPROACH – This paper uses the “Pandora Papers” to illustrate the vulnerability of the banking system to money laundering and other illicit financing risks associated with Non-Profit Organizations, and to solidify the hypothesis that effective implementation of risk-based policies, procedures, and controls can help flag illicit funds before a lengthy asset recovery process becomes necessary.

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Cover on Narrowing Death Eligibility

Aliza Cover (University of Idaho College of Law) has posted Narrowing Death Eligibility in Idaho: An Empirical and Constitutional Analysis (57 Idaho Law Review 559 (2021)) on SSRN. Here is the abstract:

 

The death penalty is a uniquely severe punishment – the ultimate, irreversible act of violence by state against citizen. Because “death is different” from all other punishments, the Eighth Amendment restricts its use, mandating that it “be reserved for the worst of crimes and limited in its instances of application.” Capital punishment statutes must narrow death eligibility, meaningfully differentiating between those “worst” murderers, who may be subject to the death penalty, and the rest of murderers, who may not.

This Article reports the findings of an empirical study designed to evaluate how effectively Idaho’s capital punishment scheme serves this constitutional narrowing requirement in practice. The study involved a review of first-and second-degree murder convictions in cases filed from June 2002 through the end of 2019 to determine how many of these cases would have been factually eligible for the death penalty under the terms of Idaho’s statutes – regardless of whether they were pursued as capital cases by the prosecution. This review revealed that 86 – 90% of all murder convictions were factually first-degree murder cases, and 93 – 98% of factual first-degree murder cases were eligible for the death penalty. These findings strongly suggest that Idaho’s statute fails to fulfill the constitutional narrowing requirement.

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