Friday, March 25, 2022
Atiq on Reasonable Moral Doubt
Emad H. Atiq (Cornell University - Law School) has posted Reasonable Moral Doubt (97 N.Y.U. Law Review (2022 Forthcoming)) on SSRN. Here is the abstract:
Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it. Kansas v. Carr, 577 U.S. 108, 119 (2016). According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply.
Implicit in these rulings is a controversial view of the nature of moral judgment.
Implicit in these rulings is a controversial view of the nature of moral judgment.
March 25, 2022 | Permalink | Comments (0)
Riboulet-Zemouli on Recreational Cannibis and International Conventions
Kenzi Riboulet-Zemouli has posted High Compliance, a Lex Lata Legalization for the Non-Medical Cannabis Industry: How to Regulate Recreational Cannabis in Accordance with the Single Convention on Narcotic Drugs, 1961 ((2022). Paris and Washington, DC: FAAAT editions. ISBN: 979-10-97087-23-4 (pdf). faaat.net/highc) on SSRN. Here is the abstract:
In the current legal landscape, it is possible to craft policy that combats drug abuse and drug harms, protects human rights, and complies with international drug control law in good faith, by regulating the recreational uses of cannabis products rather than outlawing them. This essay proposes exactly that solution. The international drug control Conventions establish the international legal regime for cannabis, but they are silent on “recreational” or “adult use.” However, they do include broad exemptions in the case of “other than medical and scientific uses in the context of industry.” They are not prohibition treaties, but Framework Conventions on the Control of Some Medicines within the Medical and Pharmaceutical Sectors. Shortcomings in the history of the drug control Conventions, and the current hegemony of one particular interpretation (articulated around prohibition), may have impacted our interpretive frames and discouraged legal scholarship from the study of these exemptions for non-medical uses, purposefully added in the treaty.
March 25, 2022 | Permalink | Comments (0)
Woods on Conventional Traffic Policing in the Age of Automated Driving
Jordan Blair Woods (University of Arkansas - School of Law) has posted Conventional Traffic Policing in the Age of Automated Driving (100 North Carolina Law Review 327 (2022)) on SSRN. Here is the abstract:
This Article offers a detailed portrait of the potentially negative systemic effects of the growth of autonomous vehicles on racial and economic justice in traffic enforcement and policing involving conventional, human-controlled vehicles. Its contributions are both descriptive and normative. Descriptively, this Article draws on multiple sources (transportation data, market research, and historical evidence) to explain why the growth of autonomous vehicles could give rise to new layers of problems involving pretextual traffic stops and aggressive traffic policing against conventional, human-controlled vehicles. Most at risk are Black, Latinx, and economically marginalized populations that are already vulnerable to overpolicing and overcriminalization in today’s driving regime. Normatively, this Article illustrates why values of policing fairness and equality must be considered ex ante and embedded into the early design and development of autonomous vehicles. Consistent with this idea, the analysis examines possibilities for using law and policy to achieve racial and economic justice in traffic enforcement in a mixed-traffic regime where autonomous and conventional vehicles share the road. In so doing, this Article strengthens existing calls for reimagining policing in the area of traffic enforcement and starts a new conversation about the need for these reforms in the advent of autonomous vehicles.
March 25, 2022 | Permalink | Comments (0)
Thursday, March 24, 2022
"E.U. Takes Aim at Big Tech’s Power With Landmark Digital Act"
The story is in the New York Times. In part:
The European Union agreed on Thursday to one of the world’s most far-reaching laws to address the power of the biggest tech companies, potentially reshaping app stores, online advertising, e-commerce, messaging services and other everyday digital tools.
The law, called the Digital Markets Act, is the most sweeping piece of digital policy since the bloc put the world’s toughest rules to protect people’s online data into effect in 2018. The legislation is aimed at stopping the largest tech platforms from using their interlocking services and considerable resources to box in users and squash emerging rivals, creating room for new entrants and fostering more competition.
March 24, 2022 | Permalink | Comments (0)
Metzger & Hoeffel on Charging Time
Pamela Metzger and Janet C. Hoeffel (Southern Methodist University - Dedman School of Law and Tulane University - Law School) have posted Charging Time on SSRN. Here is the abstract:
William Haymon's 16th birthday was also his 511th day in a Mississippi jail, but no prosecutor had formally charged him with a crime. William is one of thousands of people across the country arrested and jailed for weeks, months, and even years without charges. In one year in New Orleans, 275 people each spent an average of 115 days in jail only to have the prosecution decline all charges against them. Together, these men and women spent 31,625 days in one of the nation’s most dangerous jails, with no compensation for their incarceration, fear, lost wages, shame and distress. Yet this violates no laws; it circumvents no constitutional protections.
To date, there has been no study of the necessity of the extended time period between arrest and charging. Until a prosecutor decides to accept or decline charges, the arrestee is in a procedural abyss. In this Article, we explore the equities at stake and the realities at play in this dark period. State statutes give prosecutors extended or indefinite time periods to make the formal charging decision and prosecutors appear to take that time.
To date, there has been no study of the necessity of the extended time period between arrest and charging. Until a prosecutor decides to accept or decline charges, the arrestee is in a procedural abyss. In this Article, we explore the equities at stake and the realities at play in this dark period. State statutes give prosecutors extended or indefinite time periods to make the formal charging decision and prosecutors appear to take that time.
March 24, 2022 | Permalink | Comments (0)
Simmons on Unintended Consequences of Reducing Police Presence
Ric Simmons (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Constitutional Double Standards: The Unintended Consequences of Reducing Police Presence (George Washington Law Review, Forthcoming 2022) on SSRN. Here is the abstract:
In the wake of massive protests in the summer of 2020, many municipalities began to experiment with different ways to respond to 911 calls, while a number of school districts reversed a decades-long trend and began to take police officers out of their schools. The main purpose of these changes is to decrease the footprint of the police in the community, and hopefully de-escalate situations that might otherwise escalate into violence. Nevertheless, such interactions will result in a significant number of situations in which an alternate responder observes criminal activity or asks questions that—intentionally or unintentionally—elicit admissions of criminal activity. When alternate responders perform these actions, courts often apply conflicting—and generally quite lenient—standards in evaluating their constitutionality. Thus, one of the unintended consequences of reducing the police presence in our communities will likely be a significant reduction in individual constitutional protections.
March 24, 2022 | Permalink | Comments (0)
Opinion affirming religious exercise claim in execution chamber
Chief Justice Robert delivered the opinion of the Court in Ramirez v. Collier. Justices Sotomayor and Kavanaugh filed concurring opinions. Justice Thomas dissented.
March 24, 2022 | Permalink | Comments (0)
Wednesday, March 23, 2022
Joh on Reckless Automation in Policing
Elizabeth E. Joh (University of California, Davis - School of Law) has posted Reckless Automation in Policing (Berkeley Technology Law Journal Online, 2022) on SSRN. Here is the abstract:
Automated decision-making plays an increasingly larger role in policing. Traditional methods of police investigation have been augmented by tools like facial recognition, predictive analytics, license plate readers, and robotics. How should we evaluate the growth of automation in policing? There is no shortage of answers, but this essay starts with a simple observation: by focusing on automation’s harms to persons first. American policing is rife with reckless automation. If we accept the premise of reckless automation, the conversation about accountability, artificial intelligence, and policing might benefit from a seemingly unrelated policy framework: that of experimentation on human subjects. Borrowing from that framework does not imply that reckless automation in policing is the literal equivalent of medical or psychological experiments on human subjects. Nor does such a comparison imply that the technical aspects of institutional review boards should apply directly to new policing strategies. But turning to a bioethical framework has value because it draws attention to the subjects - the communities affected - of policing. To the extent that the ethical considerations applied in human subjects research provide useful insights to apply to the many changes in policing, they open a new conversation. What if we think of new forms of automated decision-making in policing as experiments on communities that might impose harms with life-altering decisions?
March 23, 2022 | Permalink | Comments (0)
Jacobi & Louthen on Inevitable Discovery
Tonja Jacobi and Elliot Louthen (Northwestern University - Pritzker School of Law and Northwestern University, Pritzker School of Law, Students) have posted The Corrosive Effect of Inevitable Discovery on the Fourth Amendment (University of Pennsylvania Law Review, Vol. 171, 2023 Forthcoming) on SSRN. Here is the abstract:
The Supreme Court has only once, almost four decades ago, addressed the doctrine of inevitable discovery, when it established the exception in Nix v. Williams. Inevitable discovery encapsulates the notion of no harm, no foul—if law enforcement would have discovered unlawfully obtained evidence regardless of a constitutional violation, then the resulting evidence need not be excluded.
Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding preponderance evidentiary burden. That is, the doctrine should only apply when the prosecution has proven by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual speculation, imagining a world but-for the unlawful police action, and so permits judges tremendous discretion. In the absence of further guidance by the Supreme Court, federal circuits have fashioned highly varying doctrinal tests to implement the doctrine.
Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding preponderance evidentiary burden. That is, the doctrine should only apply when the prosecution has proven by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual speculation, imagining a world but-for the unlawful police action, and so permits judges tremendous discretion. In the absence of further guidance by the Supreme Court, federal circuits have fashioned highly varying doctrinal tests to implement the doctrine.
March 23, 2022 | Permalink | Comments (1)
Cover on the Constitutional Transparency Guarantee
Aliza Cover (University of Idaho College of Law) has posted The Constitutional Guarantee of Criminal Justice Transparency (Alabama Law Review (Forthcoming)) on SSRN. Here is the abstract:
This article identifies and explores a transparency guarantee that permeates the Constitution’s criminal procedure provisions. This trans-substantive guarantee protects multiple dimensions of transparency—which I categorize as participatory, informational, and corporal—through overlapping structural safeguards and individual rights, and through protections afforded to both the public and the accused. Despite the strength and pervasiveness of the overarching transparency guarantee, the discrete provisions from which it is derived are often peripheral in today’s criminal justice system, which is dominated by plea bargaining and incarceration, rather than trials and public-square punishment. And, because the constitutional transparency protections are viewed in clause-bound isolation, modern transparency deficits are generally viewed as policy problems, not constitutional ones. I urge that renewed attention to the overarching constitutional transparency guarantee can support doctrinal and legislative efforts to strengthen criminal justice transparency in modern times.
March 23, 2022 | Permalink | Comments (0)
Tuesday, March 22, 2022
Logan on Card Carrying Sex Offenders
Wayne A. Logan (Florida State University - College of Law) has posted Card Carrying Sex Offenders on SSRN. Here is the abstract:
Although it is commonly believed that Americans have never been required to carry and show upon demand personal identification documents, the belief is incorrect. Over time, select sub-populations have in fact been subject to such a requirement, including free-born and emancipated African-Americans until after the Civil War. This article examines the targeting of yet another disfavored sub-population: individuals convicted of sex offenses, who are required to register with government authorities.
Today, roughly a dozen states require that registrants obtain and carry identification cards or driver’s licenses signifying their status.
Today, roughly a dozen states require that registrants obtain and carry identification cards or driver’s licenses signifying their status.
March 22, 2022 | Permalink | Comments (0)
Nance & Heise on Students, Threat, Race, and Police
Jason P. Nance and Michael Heise (University of Florida Levin College of Law and Cornell Law School) have posted Students, Threat, Race, and Police: An Empirical Study (50 Florida State University Law Review (forthcoming 2022)) on SSRN. Here is the abstract:
The presence of law enforcement officers in schools is more pronounced today than ever before, altering the educational experiences of students nationwide. Although the benefits of having police in schools are unclear, the legal and policy implications flowing into students’ lives are more established. Empirical studies repeatedly have documented a strong connection between regular police contact with schools and the increased rate at which school officials report students to law enforcement for committing various offenses, including lower-level offenses that arguably should be handled internally.
This Article provides the first in-depth empirical study of data spanning a decade that identifies characteristics of schools more likely to have regular contact with law enforcement.
This Article provides the first in-depth empirical study of data spanning a decade that identifies characteristics of schools more likely to have regular contact with law enforcement.
March 22, 2022 | Permalink | Comments (0)
Lynch on Anti-Racist DV Prosecution Systems
Mary A. Lynch (Albany Law School) has posted Building an Anti-Racist Prosecutorial System: Observations From Teaching a Domestic Violence Prosecution Clinic (Rutgers Law Review, Vol. 73, No. 5, 2021) on SSRN. Here is the abstract:
Particular attention must be paid to the perilous situations of victim-survivors of intimate crimes. When a survivor of color, physically abused or sexually assaulted by an intimate partner, lives in a community which has been long treated abusively and violently by law enforcement, she confronts a seemingly impossible dilemma. To free herself from violent, ongoing abuse, a survivor of color must entrust her life - literally - to the protection of a law enforcement and justice system that has repeatedly failed to earn that trust. Survivors of color must also worry that calling the police, or working with the criminal justice system to hold offenders accountable, may trigger overcharging or lengthy incarceration of a partner. In addition to risking retaliation by abusers or threats to report undocumented family members, survivors of color who engage with the criminal justice system also risk being mistakenly arrested by the police as aggressors.
March 22, 2022 | Permalink | Comments (0)
Monday, March 21, 2022
Mizel et al on Whether Mens Rea Matters
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) have posted Does Mens Rea Matter? (Wisconsin Law Review, Forthcoming) on SSRN. Here is the abstract:
Does mens rea matter to the criminal legal system? Our study addresses this question by performing the first-ever empirical analysis of a culpable mental state’s impact on administration of a criminal statute. We focus on the U.S. Supreme Court’s 2019 decision in Rehaif v. United States, which applied a culpable knowledge requirement to the federal felon-in-possession statute, 18 U.S.C. § 922(g). Prior to Rehaif, federal courts uniformly treated the critical objective element under 922(g)—whether a firearm or ammunition possessor meets the conditions for one of nine prohibited legal categories—as a question of fact for which an actor could be held strictly liable. Adding a knowledge requirement to this element resulted in a significant decline in the likelihood of a defendant being charged with 922(g), the number of 922(g) charges per defendant, the total number of defendants charged with 922(g), and the total number of 922(g) charges filed each month. We estimate that these charging reductions prevented 2,365.32 convictions and eliminated 8,419.06 years of prison sentences for 922(g) violations during the eight-month period following issuance of the Rehaif opinion. At the same time, prosecutors were just as likely to secure convictions of those they charged with 922(g) after the Rehaif decision as they were before it. All told, our study suggests that adding culpable mental states to criminal statutes can meaningfully constrain prosecutorial discretion, lower convictions, and reduce punishment without bringing criminal administration to a halt.
March 21, 2022 | Permalink | Comments (0)
Holper on Judicial Recommendations Against Immigration Detention
Mary Holper (Boston College - Law School) has posted JRAD Redux: Judicial Recommendation Against Immigration Detention (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
There is a dire need for bail reform in the immigration detention system. Scholars have suggested a variety of recommendations to improve the manner in which immigration detention decisions are made. For example, the immigration detention system can grant more procedural protections in bond hearings, improve the risk assessment tool used by Immigration and Customs Enforcement (“ICE’) agents, require decisionmakers to seriously consider a wide variety of alternatives to detention, and decrease reliance on money bail. All of these recommendations have rested on the assumption that there is a finite pool of decisionmakers: ICE, the immigration judge, and, in certain cases, a federal district court judge deciding detention issues in habeas corpus proceedings. In this article, I propose the introduction of a new decisionmaker in the immigration detention system: the criminal court judge. This proposal is a JRAD redux – instead of a judicial recommendation against deportation (“JRAD”), as previously existed in immigration law, it is a judicial recommendation against immigration detention (“JRAID”).
March 21, 2022 | Permalink | Comments (0)
Serota on Strict Liability Abolition
Michael Serota (Arizona State University, Sandra Day O'Connor College of Law) has posted Strict Liability Abolition (New York University Law Review, Vol. 97, No. 5, 2022) on SSRN. Here is the abstract:
This Article reinvigorates the case for abolishing strict liability in the criminal law. Undertaking an intellectual history of mens rea policy, I spotlight two fundamental assumptions that have fueled strict liability’s historic rise and current deprioritization in this time of criminal justice reform. One assumption is that eliminating culpable mental states from criminal statutes is an effective means of reducing crime rates. The other is that adding culpable mental states to criminal statutes is an ineffective means of lowering imprisonment rates or promoting racial justice. This Article argues that both of these assumptions are wrong. Synthesizing decades of social science research, I first explain why there is little reason to believe that strict liability promotes public safety. Next, building upon the first-ever legal impact study of an individual mens rea reform, I explain how adding culpable mental states to individual criminal statutes could reshape charging practices and conviction rates. I then demonstrate the racial justice benefits of universal mens rea standards by highlighting the concentration of strict liability in offenses disparately enforced against people of color. Through this deeper understanding of mens rea policy, the Article reveals just how strong the case against strict liability is, and why across-the-board imposition of culpable mental state requirements is an important tool in the fight against mass incarceration.
March 21, 2022 | Permalink | Comments (0)
Sunday, March 20, 2022
Top-Ten Recent SSRN Downloads in Criminal Law eJournal
are here. The usual disclaimers apply.
| Rank | Paper | Downloads |
|---|---|---|
| 1. |
Date Posted: 19 Feb 2022 [2nd last week] |
264 |
| 2. |
Date Posted: 28 Jan 2022 [1st last week] |
261 |
| 3. |
Date Posted: 08 Mar 2022 [8th last week] |
258 |
| 4. |
Date Posted: 31 Jan 2022 [3rd last week] |
234 |
| 5. |
Date Posted: 25 Feb 2022 |
204 |
| 6. |
Date Posted: 25 Feb 2022 [4th last week] |
204 |
| 7. |
Date Posted: 25 Jan 2022 [6th last week] |
187 |
| 8. |
Date Posted: 24 Feb 2022 [7th last week] |
143 |
| 9. |
Date Posted: 26 Jan 2022 |
86 |
| 10. |
Date Posted: 09 Mar 2022 [new to top ten] |
79 |
March 20, 2022 | Permalink | Comments (0)
Saturday, March 19, 2022
Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal
are here. The usual disclaimers apply.
| Rank | Paper | Downloads |
|---|---|---|
| 1. |
Date Posted: 25 Feb 2022 |
1,438 |
| 2. |
Date Posted: 08 Mar 2022 [8th last week] |
258 |
| 3. |
Date Posted: 25 Feb 2022 [5th last week] |
204 |
| 4. |
Date Posted: 25 Feb 2022 |
204 |
| 5. |
Date Posted: 13 Jan 2022 [6th last week] |
142 |
| 6. |
Date Posted: 18 Nov 2021 [7th last week] |
133 |
| 7. |
Date Posted: 28 Aug 2021 [9th last week] |
111 |
| 8. |
Date Posted: 15 Feb 2022 [10th last week] |
104 |
| 9. |
Date Posted: 07 Mar 2022 [new to top ten] |
88 |
| 10. |
Date Posted: 17 Jan 2022 [new to top ten] |
82 |
March 19, 2022 | Permalink | Comments (0)
Friday, March 18, 2022
Yun on Decarceration and Community Safety
Minjae Yun (Claremont Colleges, Claremont Graduate University - Department of Economics) has posted Criminal Decarceration Policies and the Effect on Community Safety on SSRN. Here is the abstract:
This paper examines the effect of re-sentencing policies as a means of decarceration on community well-being. In 2011 and 2014, California passed jail decarceration policies, AB 109 and Prop 47, respectively. AB 109 reallocated state prison inmates into local county jails. On the other hand, Prop 47 reduced penalties for non-serious property crimes, thereby providing a second chance to offenders that committed specific non-violent crimes while lowering the burden on county jails by shifting offenders into local communities. My results indicate that Prop 47 increased the homeless population and health-related governmental spending but did not reduce governmental spending on corrections.
Furthermore, California jail disposition data show heterogeneous effects on recidivism. For example, Prop 47 decreased recidivism rates for Prop 47 charges (non-serious and non-violent charges) after AB 109 increased the rates in county jails. However, Prop 47 failed to lower recidivism rates for control group charges (more severe than Prop 47 charges) after AB 109 raised the rates in county jails. Finally, I find that Prop 47 raised non-violent crime rates, utilizing Los Angeles crime data, especially among non-homeless offenders.
Furthermore, California jail disposition data show heterogeneous effects on recidivism. For example, Prop 47 decreased recidivism rates for Prop 47 charges (non-serious and non-violent charges) after AB 109 increased the rates in county jails. However, Prop 47 failed to lower recidivism rates for control group charges (more severe than Prop 47 charges) after AB 109 raised the rates in county jails. Finally, I find that Prop 47 raised non-violent crime rates, utilizing Los Angeles crime data, especially among non-homeless offenders.
March 18, 2022 | Permalink | Comments (0)
Tsoi on Compassionate Release
Chun Hin Jeffrey Tsoi has posted Compassionate Release as Compassionate Decarceration: State Influence on Federal Compassionate Release and the Unfinished Federal Reform (59 Am. Crim. L. Rev. Online 1 (2022)) on SSRN. Here is the abstract:
The First Step Act's (FSA) compassionate release reform was a “modest but necessary” step; the pandemic and the threat it posed to the incarcerated population ought to prompt reflections on what the next steps should be. This Essay is intended to serve as both a brief historical review of state influence on federal compassionate release, and as a reflection on the unfinished compassionate release reform in terms of DOJ’s execution. Part I briefly surveys the trajectory of 18 U.S.C. § 3582(c) from the Sentencing Reform Act (SRA) to the Prisoner-initiated & Court-ordered (PICO) compassionate release provision in the FSA, and its application in the pandemic. Part II supplements the compassionate release literature by exploring the history of PICO compassionate release in state law as a backdrop of the long-awaited federal reform allowing prisoners to petition for their own release, and it proposes that state practices, especially that of New Jersey, might have influenced the introduction and passage of FSA in part through the Model Penal Code. Part III suggests that the arc of compassionate release reform in federal law is nevertheless unfinished, with the Department of Justice’s (DOJ) objection practices being part of the necessary change. Using data and cases from the District of Columbia, whose PICO compassionate release statute is modeled after federal law and clearly intended as a response to the pandemic, this Essay proposes that the DOJ's perspective and practices must change to adapt to the essential purpose of compassionate release: addressing mass incarceration in America with compassion.
March 18, 2022 | Permalink | Comments (0)
