CrimProf Blog

Gotell & Grant on Non-Consensual Condom Removal

Lise Gotell and Isabel Grant (University of Alberta and University of British Columbia - Faculty of Law) have posted Non-Consensual Condom Removal in Canadian Law Before and After R. v. Hutchinson (44:2 Dal LJ 439-475 (2021)) on SSRN. Here is the abstract:

 

This paper examines the phenomenon of nonconsensual condom removal (NCCR) and its relationship to sexual assault in Canada. Using empirical studies and the insights of feminist theory, we explore the nature of the harms caused by NCCR and contend that this pervasive practice constitutes sexual assault. We then critique the decision of R v Hutchinson, which held that condom sabotage does not negate subjective consent, ignoring the dignitary harms of NCCR. While lower court decisions before Hutchinson recognized that consent to sex with a condom does not include consent to sex without, courts after Hutchinson have struggled to distinguish the decision in ways that lack coherence or have simply ignored the decision altogether. After briefly examining legislative amendments in other jurisdictions, we argue for a return to the fundamental finding in R v Ewanchuk that how sexual activity is carried out, including whether a condom is used, must be part of the subjective consent inquiry.

Lee on Proxy Crimes and Overcriminalization

Youngjae Lee (Fordham University School of Law) has posted Proxy Crimes and Overcriminalization (Criminal Law and Philosophy 2022) on SSRN. Here is the abstract:

 

A solution to the problem of “overcriminalization” appears to be decriminalization of certain crimes. This Essay focuses on a group of crimes that has been labeled “proxy crimes” as a candidate to be eliminated. What are proxy crimes? Douglas Husak defines them as “offenses designed to achieve a purpose other than to prevent the conduct they explicitly proscribe.” Michael Moore describes them as involving situations where we “use one morally innocuous act as a proxy for another, morally wrongful act or mental state.” Put that way, proxy crimes seem highly problematic, and Larry Alexander and Kimberly Ferzan bluntly put, “We reject proxy crimes.” This Essay asks whether we should reject proxy crimes by presenting and evaluating Alexander and Ferzan’s treatment of the subject.

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Lee on Citizenship and The State's Right to Evidence

Youngjae Lee (Fordham University School of Law) has posted The State’s Right to Evidence and Duties of Citizenship (31 Philosophical Issues: A Supplement to NOÛS 210 (2021)) on SSRN. Here is the abstract:

 

According to Justice Scalia, “[w]hile every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offence and accept the punishment he deserves,” and “to design our laws on premises contrary” to that view is “to abandon belief in either personal responsibility or the moral claim of just government to obedience.” The purpose of this Essay is to consider the proposition that citizens have an obligation to cooperate with law enforcement in a just society, including by undertaking measures that enhance the society’s knowledge of one’s own and others’ criminal activities. This Essay will defend the following propositions. First, once we start from the assumption that there is a duty on the part of citizens to cooperate with the legal system in a just society, it is difficult to resist the conclusion that citizens have a duty to cooperate with law enforcement and provide information about criminal wrongdoing to the authorities, and the duty appears to extend not just to other people’s criminal wrongdoing but to one’s own. Second, a society in which citizens understand themselves to have a moral obligation to cooperate with law enforcement is not necessarily a good society. Even in a just society, there is a proper, even adversarial, distance between citizens and the state that requires a constant vigilance to maintain. A place where we can arrive at this insight in the starkest way is the realm of criminal procedure, where criminal defense lawyers help maintain the kind of desirable distance precisely by placing various obstacles in front of the state’s efforts to enforce the law, but that orientation towards the state can be generalized outside the realm of criminal procedure narrowly conceived.

Ruben on Public Carry and Criminal Law

Eric Ruben (SMU Dedman School of Law) has posted Public Carry and Criminal Law After Bruen (Harvard Law Review Forum, Forthcoming) on SSRN. Here is the abstract:

 

Gun rights supporters appear to be on the cusp of achieving a decades-long goal: defanging licensing laws for carrying handguns in public nationwide. More than 20 states have removed all licensing requirements for concealed carry, and most of the others now require little more than a background check. At oral argument in New York State Rifle & Pistol Ass’n v. Bruen, meanwhile, the Supreme Court seemed poised to strike down policies in the remaining states that limit licenses to those who can show a heightened need, or “good cause,” to carry a gun. If that happens, what comes next?

This short essay contends that if strong licensing regimes are off the table, a key focus of regulation will be how criminal law otherwise governs gun carry and use.

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Armstrong on Captive Labor

Andrea C. Armstrong (Loyola University New Orleans College of Law) has posted Beyond the 13th Amendment-Captive Labor (82 Ohio St. L.J. 1039 (2021)) on SSRN. Here is the abstract:

 

This article proposes a framework to understand incarcerated labor beyond the confines of the Thirteenth Amendment. A new congressional resolution to amend the Thirteenth Amendment of the U.S. Constitution aims to expand protection from slavery and involuntary servitude to incarcerated people convicted of a crime. The current Thirteenth Amendment, enacted in 1865, prohibits slavery and involuntary servitude for all “except as a punishment for crime whereof the party shall have been duly convicted.” That exception is used to justify forced agricultural labor on former plantation sites, involuntary cleaning after oil spills and other natural disasters, and work on behalf of private corporations including answering phones, sewing clothes, and recycling electronics.

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Hutchinson on Systemic Racism, Punitive Sentiment, and Equal Protection

Darren Lenard Hutchinson (Emory University School of Law) has posted 'With All the Majesty of the Law': Systemic Racism, Punitive Sentiment, and Equal Protection (California Law Review 2022) on SSRN. Here is the abstract:

 

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain white supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social scientists who study race find that contemporary racism is one of the strongest predictors of punitive sentiment. Specifically, persons who have strong implicit racial bias, racial resentment, or social dominance orientation are more likely to endorse harsh punishments.

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Robinson & Rushin on The Law Enforcement Lobby

Zoe Robinson and Stephen Rushin (Australian National University, School of Politics and International Relations and Loyola University Chicago School of Law) have posted The Law Enforcement Lobby (Minnesota Law Review, Vol. 107, Forthcoming) on SSRN. Here is the abstract:

 

The law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system—particularly police unions, correctional officer unions, and prosecutor associations—that exert an outsized role in policy development. The law enforcement lobby operates largely without coordinated opposition, resulting in capture of criminal justice policymaking and skewed policy outcomes that often institutionalize injustice and subordination. The strength of the law enforcement lobby also presents a challenge to the growing defunding and abolition movements. Nevertheless, the law enforcement lobby remains at the periphery of contemporary scholarly conversations about the democratization and design of criminal justice institutions.

This Article describes and evaluates the influence of the law enforcement lobby on criminal justice policy.

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Romero on Sentencing Harms to Sexual Assault Victims

Maybell Romero (Tulane University Law School) has posted 'Ruined' (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

Judges play a critical role in one of the most important states of a criminal case’s adjudication—sentencing. While there have been substantial limitations placed on the discretion judges can exercise in devising punishments, there are little to none on what judges say at such hearings when articulating their rationales for the sentences they impose on convicted defendants. This Article examines the language judges use when sentencing defendants convicted rape, sexual assault, and sexual abuse that describes victims of those crimes and the harms they have sustained, especially language that describes victims as “ruined,” “broken,” or “destroyed.” The use of such language, while apparently meant to be empathetic, only serves to uphold misogynistic understandings of rape and sexual assault and actively harms victims. Judges trying to justify harsh sentences for defendants convicted of sex crimes also engage in shaming and exploitation of victims when saying that defendants have left victims “ruined” at sentencing.

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Buell on Corporate Criminal Liability

Samuel W. Buell (Duke University School of Law) has posted Criminal Liability (Edward Elgar Research Handbook on Corporate Liability (M. Petrin and C. Witting eds. 2022)) on SSRN. Here is the abstract:

 

This research handbook chapter provides a brief introduction to corporate criminal liability as a subject of academic inquiry. The chapter surveys and critiques the theoretical arguments for and against the practice, the doctrinal alternatives and complications involved in bringing the theory to ground, the central influence of the structure and behavior of enforcement institutions, and the role of political economy in the development of this legal phenomenon.

D'Onfro & Epps on The Fourth Amendment and General Law

Danielle D'Onfro and Daniel Epps (Washington University in St. Louis - School of Law and Washington University in St. Louis - School of Law) have posted The Fourth Amendment and General Law (132 Yale Law Journal (2023 Forthcoming)) on SSRN. Here is the abstract:

 

For decades, Fourth Amendment protections have turned on “reasonable expectations of privacy.” But a new era may be dawning. There is growing interest among judges and scholars in turning away from privacy towards property or positive law as the touchstone for Fourth Amendment protections. Yet many questions remain about how that approach should work, such as where judges should look for positive law and precisely what role positive law should play in Fourth Amendment analysis.

This Article answers those questions, and in so doing lays forth a new, comprehensive theory of the Fourth Amendment. We argue that courts should interpret the Fourth Amendment’s protections by looking to “general law”—the common law that is under the control of no particular sovereign. Courts looking to general law would draw on ancient property concepts such as trespass, license, and bailments in determining the scope of protections. But they would also draw on custom, social practices, and modern legal developments to identify and flesh out common-law rules unknown at the Founding.

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Ferzan on The Trouble with Time Served

Kimberly Kessler Ferzan (University of Pennsylvania Carey Law School) has posted The Trouble with Time Served on SSRN. Here is the abstract:

 

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions. The bottom line is this: Time served is not a panacea. To the contrary, it contributes to criminal justice pathologies.

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Nelson on ESG and Corporate Criminal Liability

J.S. Nelson (Harvard Business School) has posted The Future of Corporate Criminal Liability: Watching the ESG Space (in Edward Elgar Research Handbook on Corporate Liability (Forthcoming)) on SSRN. Here is the abstract:

 

The future of corporate criminal liability in the U.S. and around the world may be for failure to adequately act on environmental, social, and governance (ESG) issues. In Europe and elsewhere, courts have found a fundamental right or the equivalent to protection from climate change. That right has been exercised in court cases against governments first, and it is moving into cases against private corporations.

This chapter focuses within ESG issues on potential U.S. corporate criminal liability for inaction to prevent climate change. There has not been discussion of this topic elsewhere in the literature, and businesses need to look for these developments in the law.

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Abel on Cop Tracing

Jonathan Abel (UC Hastings Law) has posted Cop Tracing (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

 

What happens to an officer’s old cases when that officer is exposed as corrupt? Often, the answer is nothing. This Article calls for “cop tracing”: an effort to identify and investigate the past cases handled by dishonest cops. The Article first describes the existing action and inaction with respect to such tracing. Next, it examines the logistical and legal barriers to cop tracing. Finally, the Article considers the implications of cop tracing’s absence. The failure to engage in cop tracing is symptomatic of the failure to see the misconduct of even a single bad officer in systemic terms.

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers:

• Cruz v. Arizona: Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1 (g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

Pollis on Appellate Review for Implicit Bias

Andrew Pollis (Case Western Reserve University School of Law) has posted The Appellate Judge as the Thirteenth Juror: Combating Implicit Bias in Criminal Convictions on SSRN. Here is the abstract:

 

Research has documented the effect that implicit bias plays in the disproportionately high wrongful-conviction rate for people of color. This Article proposes a novel solution to the problem: empowering individual appellate judges, even over the dissent of two colleagues, to send cases back for retrial when the trial record raises suspicions of a conviction tainted by the operation of implicit racial bias.

Factual review on appeal is unwelcome in most jurisdictions. But the traditional arguments against it, which highlight the importance of deference to the jury’s fact-finding powers, are overly simplistic. Scholars have already demonstrated the relative institutional competency of appellate judges to review jury verdicts gone awry, even when the evidence is legally sufficient. The operation of implicit bias in jury deliberations only enhances the need for this review.

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Moran on Brady Lists

Rachel Moran (University of St. Thomas - School of Law (Minnesota)) has posted Brady Lists (Minnesota Law Review, Vol. 107) on SSRN. Here is the abstract:

 

Brady lists, named after the Supreme Court’s 1963 decision Brady v. Maryland, are lists some prosecutors maintain of law enforcement officers with histories of misconduct that could impact the officers’ credibility. The lists serve as tools for prosecutors to track officer misconduct and disclose that information to defense counsel where appropriate.

Although Brady lists have existed in some form for decades, they have garnered considerably more attention and controversy in the past several years. Brady lists are the subject of extensive media interest and litigation, but surprisingly little legal analysis or scholarship. This article provides a thorough examination into laws and practices surrounding use of Brady lists, as well as controversies arising from these lists.

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Romero et al. on Intimate Partner Violence

Maybell Romero, Jon Tunheim and Chantelle Williams (Tulane University Law School, Government of the State of Washington and Institute for Innovation in Prosecution) have posted Intimate Partner Violence: A Best Practices Guide for Prosecutors in Smaller Jurisdictions on SSRN. Here is the abstract:

 

Intimate partner violence (IPV) impacts people irrespective of income, education, and geography. In the United States, one in five homicide victims are killed by an intimate partner, and over half of female homicide victims are killed by a current or former male partner. Over 10 million women and men continue to experience IPV each year. IPV is an age-old social concern that continues to torment millions of people across the nation.

With this sobering reality in mind, the IIP’s Beyond Big Cities members came together to discuss their experiences with IPV cases. These conversations highlighted successful approaches to combating IPV in smaller communities, revealed unique challenges that rural communities face relating to IPV, and explored innovative responses to IPV. This document provides a survey of IPV prosecution in smaller jurisdictions, particularly rural ones, based on research and information that Beyond Big Cities members provided to the authors.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Police Brutality as Torture Nadia Banteka University of the Pacific - McGeorge School of Law Date Posted: 08 Mar 2022 [3rd last week]	355
2.	The Negative Right to Shelter Ben A. McJunkin Arizona State University (ASU) - Sandra Day O'Connor College of Law Date Posted: 19 Feb 2022 [1st last week]	280
3.	Life 'Or' Death Marlee Russell University of Mississippi Date Posted: 28 Jan 2022 [2nd last week]	262
4.	Focusing the CFAA in Van Buren Orin S. Kerr University of California, Berkeley School of Law Date Posted: 31 Jan 2022	253
5.	How To Fix Section 230 Danielle Keats Citron University of Virginia School of Law Date Posted: 11 Mar 2022 [new to top ten]	213
6.	Prosecutorial Nonenforcement and Residual Criminalization Justin Murray New York Law School Date Posted: 25 Feb 2022 [5th last week]	211
7.	Dealing with Dead Crimes Joel S. Johnson Independent Date Posted: 25 Feb 2022 [6th last week]	210
8.	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 [7th last week]	200
9.	Criminal Justice Expertise Benjamin Levin University of Colorado Law School Date Posted: 24 Feb 2022 [8th last week]	157
10.	Does Mens Rea Matter? Matthew Mizel, Michael Serota, Jonathan Cantor and Joshua Russell-Fritch Arnold Ventures, Arizona State University, Sandra Day O'Connor College of Law, RAND Corporation and Independent Date Posted: 09 Mar 2022 [10th last week]	106

Bar examiners seek comments on content to be tested

The National Conference of Bar Examiners is seeking comment on the content to be tested beginning in 2026 on the bar exam. The outlines include Criminal Law and Constitutional Protections of Accused Persons (see p. 23-26). You can find the outline and the form for comment here. 

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The New Due Process: Fairness in a Fee-Driven State Glenn Harlan Reynolds and Penny White University of Tennessee College of Law and University of Tennessee College of Law Date Posted: 25 Feb 2022	1,447
2.	'Ruined' Maybell Romero Tulane University Law School Date Posted: 21 Mar 2022 [new to top ten]	471
3.	Police Brutality as Torture Nadia Banteka University of the Pacific - McGeorge School of Law Date Posted: 08 Mar 2022 [2nd last week]	355
4.	The Fourth Amendment and General Law Danielle D'Onfro and Daniel Epps Washington University in St. Louis - School of Law and Washington University in St. Louis - School of Law Date Posted: 21 Mar 2022 [new to top ten]	340
5.	Prosecutorial Nonenforcement and Residual Criminalization Justin Murray New York Law School Date Posted: 25 Feb 2022 [3rd last week]	211
6.	Dealing with Dead Crimes Joel S. Johnson Independent Date Posted: 25 Feb 2022 [4th last week]	210
7.	Rectifying Wrongful Convictions Through the Dormant Grand Jury Clause Colin Miller University of South Carolina School of Law Date Posted: 28 Aug 2021	112
8.	Plea Bargaining and Mass Incarceration Albert W. Alschuler University of Chicago Law School Date Posted: 15 Feb 2022	112
9.	The Fourth Amendment Without Police Shawn Fields Campbell University - Norman Adrian Wiggins School of Law Date Posted: 07 Mar 2022	108
10.	Courts Without Court Andrew Guthrie Ferguson American University Washington College of Law Date Posted: 09 Mar 2022 [new to top ten]	99