CrimProf Blog

Khakhar on Juries and Erroneous Verdicts

Nik Khakhar has posted 'Reviewing Our Peers': Evaluating the Legitimacy of the Canadian Jury Verdict in Criminal Trials (University of Toronto Faculty of Law Review, Vol. 80, No. 1, 2022) on SSRN. Here is the abstract:

This article examines the complex relationships between the Canadian jury composition, common law jury secrecy doctrines, and the accuracy of verdicts. Using wrongful convictions research, it advances two arguments: that the lay composure of jurors poses the risk of inaccurate interpretations of unreliable evidence, and that jury secrecy doctrines inhibit courts from mitigating these risks. The article concludes by advancing a proposal for jury reform that safeguards the historical function of the jury in Canada while mitigating the risk of erroneous verdicts.

Tsoi on Protests and the Fourth Amendment

Chun Hin Jeffrey Tsoi has posted Seizing § 1983 After Your Protest Today: Fourth Amendment and Protest Policing post-Torres (59 Am. Crim. L. Rev. Online 98 (2022)) on SSRN. Here is the abstract:

Protestors' Fourth Amendment claims are often dismissed because the officer "dispersed" but did not "seize" them. This Essay is devoted to examining the space of the Fourth Amendment that can be seized in the context of protest policing after Torres v. Madrid, by suggesting (relatively) novel arguments regarding protest policing conduct that fall under the three types of seizure laid out in Torres. Part I of this Essay discusses the impact of Torres on Fourth Amendment seizure jurisprudence. Part II examines some sample categories of protest policing conduct and the (relatively) novel arguments that they remain reasonably (or even squarely) within the current seizure jurisprudence—under seizures by force, voluntary submission to show of authority (seizures by control), and termination of movement by means intentionally applied (seizures by control). Part III then concludes by summarizing alternative routes (e.g., Fourteenth Amendment substantive due process) should these seizure arguments fail, and some further barriers to proceeding (e.g., qualified immunity) should these seizure arguments succeed.

Fehr on Pretrial Sanctions

Colton Fehr (Simon Fraser University) has posted Deterring Rights Litigation: R v Basque ((2022) 78 Criminal Reports (7th) 138) on SSRN. Here is the abstract:

 

The New Brunswick Court of Appeal’s decision in R v Basque —which was recently granted leave to appeal by the Supreme Court —illustrates a concern with subjecting offenders to pre-trial driving prohibitions and then failing to credit the time served towards their sentences. The author argues that this practice deters litigants from litigating rights issues as the main consequence for driving offences - a driving prohibition - will be prolonged if the litigant chooses to plead not guilty. This approach is inconsistent with the right to a fair trial.

Ferguson on Digital Policing and the Fourth Amendment

Andrew Guthrie Ferguson (American University Washington College of Law) has posted Why Digital Policing is Different (Ohio State Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

Many Fourth Amendment debates boil down to following argument: if police can already do something in an analog world, why does it matter that new digital technology allows them to do it better, more efficiently, or faster. This Article addresses why digital is, in fact, different when it comes to police surveillance technologies. The Article argues that courts should think of these digital technologies not as enhancements of traditional analog policing practices but as something completely different, warranting a different Fourth Amendment approach. Properly understood, certain digital searches should be legally distinguishable from analog search precedent such that the latter cases no longer control the analysis.

Opinion holding feds and state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country

Justice Kavanaugh delivered the opinion of the Court in Oklahoma v. Castro-Huerta. Justice Gorsuch dissented, joined by Justices Breyer, Sotomayor, and Kagan.

Delaporte & Pino on Female Political Representation and Violence Against Women

Magdalena Delaporte and Francisco Pino (Pontificia Universidad Catolica de Chile and Université Libre de Bruxelles (ULB) - European Center for Advanced Research in Economics and Statistics (ECARES)) have posted Female Political Representation and Violence Against Women: Evidence from Brazil on SSRN. Here is the abstract:

 

This paper studies the effect of female political representation on violence against women. Using a Regression Discontinuity design for close mayoral elections between female and male candidates in Brazil, we find that electing female mayors leads to a reduction in episodes of gender violence. The effect is particularly strong when focusing on incidents of domestic violence, when the aggressor is the ex-husband/boyfriend, and when victims experienced sexual violence. The evidence suggests that female mayors might implement different policies from male mayors and therefore contribute to reduce gender violence.

Alschuler on The Corruption of the Pardon Power

Albert W. Alschuler (University of Chicago Law School) has posted The Corruption of the Pardon Power (University of St. Thomas Law Journal, Vol. 18, No. 1, 2022) on SSRN. Here is the abstract:

 

While thousands of clemency applications remained unresolved, President Trump granted clemency to potential witnesses against him, political supporters, personal friends, people with political constituencies, rap stars, abusive law enforcement officers, war criminals, and people whose applications were championed by movie stars, professional athletes, Fox News commentators, and Trump’s former lawyers. This Article provides brief descriptions of 52 of Trump’s clemency grants, many of them familiar (Stone, Manafort, Flynn, Bannon, Arpaio) and many less known (DeBartolo, Benton, Broidy, Braun, Kapri). The Article also offers a short history of federal clemency and describes some of the troublesome grants that preceded Trump’s presidency. It asks whether the Framers erred by granting a nearly unfettered pardon power to the president.

McGlynn on Challenging Anti-Carceral Feminism

Clare McGlynn (Durham Law School, Durham University) has posted Challenging Anti-Carceral Feminism: Criminalisation, Justice and Continuum Thinking ((2022) 93 Women Studies International Forum) on SSRN. Here is the abstract:

 

While anti-carceral feminism – which challenges the use of the criminal law and criminal justice system to tackle violence against women – is increasingly dominant, this article builds on an emerging body of work contesting its central premises. In particular, this article emphasises that some sexual violence survivors seek criminal justice redress and examines the work of feminist organisations both supporting survivors and demanding radical change. It argues that some anti-carceral feminism risks reifying existing criminal laws and reproducing sexual violence myths and stereotypes. In doing so, it defends criminalisation of ‘new’ and emerging forms of abuse and offers ‘continuum thinking’ (Boyle 2019) as a way of moving beyond the polarised and binary approaches of current debates and activism. The aim is to encourage a nuanced, complex approach to the criminal law and criminalisation which recognises both a role for criminal justice and alternatives; which listens to the voices of all survivors, including those whose understanding of justice includes criminal justice; and which is fully alive to the risks and challenges that all justice approaches entail whether state or community based.

Johnston on Extreme Emotional Disturbance

E. Lea Johnston (University of Florida Levin College of Law) has posted Extreme Emotional Disturbance: Legal Frameworks and Considerations for Forensic Evaluation (BEHAV. SCI. LAW 2022, 1-23) on SSRN. Here is the abstract:

 

A significant minority of jurisdictions in the United States offer extreme emotional disturbance (EED) as a partial defense to murder. The form of this defense, as established by statute and case law, varies widely among jurisdictions. Empirical research on EED is scant with little guidance to forensic mental health professionals on how to approach and conceptualize potential EED cases. This paper addresses these issues by being the first known published work to (1) set forth a contemporary map of the varying definitions and scope of EED across the United States, (2) translate legal terminology into constructs accessible to forensic evaluators, and (3) provide legal and clinical analyses of sample EED cases to highlight key differences in the form of the defense and the admissibility of evidence between jurisdictions.

Marino on Restoration, Retribution, and Sexual Assault

Kristen Marino has posted Restoration, Retribution, and Sexual Assault: The Value of Apologies (University of Pennsylvania Law Review, Vol. 171, 2023 Forthcoming) on SSRN. Here is the abstract:

The #MeToo and #TimesUp movements have cast new light on the alarming prevalence of sexual violence. They have ignited conversations about the harm that such offenses cause, the continued need for redress, and the ongoing battle for victims of sexual violence to be believed and obtain justice.

Despite increased public attention on sexual violence, the traditional criminal justice system does not address sufficiently sexual assault cases. Conviction rates are low; incarceration rates are lower. This reality undermines deterrence and results in a dearth of sexual offenders who receive morally sufficient punishment. Meanwhile, defendants hesitate to admit responsibility and engage in healing conversations with victims due to fears of liability, thereby impeding restoration and rehabilitation.

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Grad on Bail Pending Appeal

Kenneth Grad (York University, Osgoode Hall Law School) has posted The More Things Change, the More They Stay the Same: Bail Pending Appeal After R v Oland (Manitoba Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

In 2017 the Supreme Court of Canada rendered its decision in R v Oland. The Oland case presented a rare opportunity for the Court to clarify the test for bail pending appeal in Criminal Code s. 679(3), which asks: (a) whether the appeal is frivolous; (b) whether the appellant will surrender into custody; and (c) whether the appellant’s detention is necessary in the public interest. Oland’s focus was on the public interest ground and particularly the sub-question of whether public confidence in the administration of justice supports the applicant’s release. Oland held that it is appropriate to provide a detailed assessment of the merits of the appeal as part of the public confidence inquiry. However, the Court emphasized that public confidence should play a role only in the most serious cases. Consideration of public confidence was to be the exception, not the rule. This article provides an empirical analysis of over two hundred bail pending appeal decisions in the five years preceding and following Oland.

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Bandes on Victim Impact Statements

Susan A. Bandes (DePaul University - College of Law) has posted What are Victim Impact Statements for? (87 Brooklyn Law Review 1253 (2022)) on SSRN. Here is the abstract:

 

In Payne v. Tennessee, the US Supreme Court upheld the admission of victim impact statements (VIS) on the ground that they provide valuable information to the sentencer. In the three decades since, two additional rationales for VIS have become ascendant: most prominently, a therapeutic rationale, and more recently, a public education rationale. In this article, I expand upon my critiques of the informational and therapeutic rationales in light of a growing body of empirical evidence about how VIS affect both sentencers and crime victims. Focusing on the powerful and viral VIS delivered at the Larry Nassar guilty plea hearings and the Brock Turner trial, I consider whether VIS can be defended as a vehicle for informing the public about the impact of crime—particularly crimes that are underenforced or poorly understood. I conclude that ultimately the current VIS regime arises from and reinforces an individualistic model of crime that is not well-suited to illuminating the scope or consequences of criminal behavior, particularly in multi-victim cases like those of Larry Nassar. More generally, I argue that there are fairer and more robust models for achieving the informational, healing, and educative goals that victim impact statements are meant to serve, and that these models may well require decoupling those goals from the narrow ambit of the criminal justice system.

Opinion holding that First Step Act allows consideration of intervening changes of law or fact in considering sentence reduction

Justice Sotomayor delivered the opinion of the Court in Concepcion v. United States. Justice Kavanaugh filed a dissenting opinion, in which the Chief Justice and Justices Alito and Barrett joined.

Opinion requiring mens rea regarding authorization to prescribe controlled substance

Justice Breyer delivered the opinion of the Court in Xiulu Ruan v. United States. Justice Alito filed an opinion concurring in the judgment, in which Justice Thomas joined and in part of which Justice Barrett joined.

Mahabir & Kinlocke on Transplanting Crime and Policing Policies

Aleem Mahabir and Robert Kinlocke (Department of Geography and Geology, The University of the West Indies, Mona and Department of Geography and Geology) have posted Cut and Paste Policing? An Assessment of Compstat’s Importation and Implementation in a Developing Country (Caribbean Journal of Criminology, Vol. 3, No. 1, pp. 40-68 (2021)) on SSRN. Here is the abstract:

 

Crime and policing policies derived from the Global North are being imported by law enforcement agencies in the Global South. It may be pertinent to question the adaptability of these policies to different development contexts that may not fall in the realm of an “ideal operational environment”. Using Compstat’s implementation by the Trinidad and Tobago Police Service as a case study, the paper aims to highlight the possible issues that may arise when law enforcement agencies in the Global South attempt to replicate this Northern practice, describing some remedial measures that can be undertaken to improve Compstat’s adaptability in a Southern context.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Police Policing Police Zachary D. Kaufman Washington University in St. Louis - School of Law Date Posted: 27 May 2022	294
2.	Criminal Law Exceptionalism Benjamin Levin University of Colorado Law School Date Posted: 10 May 2022	263
3.	Five Reflections from Four Years of FOSTA/SESTA Kendra Albert Harvard Law School Date Posted: 14 May 2022 [4th last week]	144
4.	Felony Financial Disenfranchisement Neel U. Sukhatme, Alexander Billy and Gaurav Bagwe Georgetown University Law Center, Ankura Consulting, LLC and Bates White, LLC Date Posted: 28 Apr 2022 [6th last week]	112
5.	Justice for Emerging Adults after Jones: The Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to Defendants Ages 18 and Older Francis X. Shen, Fenella McLuskie, Erin Shortell, Mariah Bellamoroso, Elizabeth Escalante, Brenna Evans, Ian Hayes, Clarissa Kimmey, Sarah Lagan, Madeleine Muller, more... Harvard University - Center for Bioethics, affiliation not provided to SSRN, Harvard University - Harvard Law School, Harvard University, Harvard Law School, Harvard University, Harvard Law School, Students, Tufts University, University of Minnesota Law School, Harvard College, affiliation not provided to SSRN, Harvard University, Harvard College, Students, Northwestern University Date Posted: 06 Jun 2022 [8th last week]	102
6.	A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment Mugambi Jouet McGill Faculty of Law Date Posted: 24 May 2022 [9th last week]	76
7.	The Future of Law and Neuroscience Owen D. Jones Vanderbilt University - Law School & Dept. of Biological Sciences Date Posted: 11 Jun 2022 [new to top ten]	60
8.	Criminal Terms Anna Roberts St. John's University - School of Law Date Posted: 17 Jun 2022 [new to top ten]	47
9.	The Slayer Rule: An Empirical Examination Fredrick E. Vars University of Alabama - School of Law Date Posted: 18 May 2022 [new to top ten]	44
10.	Future Sex I. Bennett Capers Fordham University School of Law Date Posted: 03 May 2022 [new to top ten]	42

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Abolishing the Evidence-Based Paradigm Erin Collins University of Richmond School of Law Date Posted: 29 Apr 2022	290
2.	Criminal Law Exceptionalism Benjamin Levin University of Colorado Law School Date Posted: 10 May 2022	263
3.	The Constitution and Criminal Justice Abhinav Sekhri Delhi High Court Date Posted: 10 Jun 2022 [4th last week]	176
4.	The Carpenter Test as a Transformation of Fourth Amendment Law Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 30 Apr 2022 [5th last week]	163
5.	Policing is Not a Good I. India Thusi Indiana University Maurer School of Law Date Posted: 18 May 2022 [6th last week]	158
6.	Toolmark-Comparison Testimony: A Report to the Texas Forensic Science Commission David H. Kaye, Gregory Antill, Elaine Emmerich, Charlotte Ishida, Marnie Lowe and Rachel Perler PSU - Penn State Law (University Park), Yale Law School, Yale University, Law School, Yale University, Law School, Yale University, Law School and Yale University, Law School Date Posted: 18 May 2022 [7th last week]	125
7.	Plea Bargaining’s Uncertainty Problem Jeffrey Bellin William & Mary Law School Date Posted: 27 Apr 2022 [new to top ten]	117
8.	Is a Question Hearsay? Kenneth W. Graham University of California, Los Angeles (UCLA) - School of Law Date Posted: 17 May 2022 [10th last week]	104
9.	How to Save Face & the Fourth Amendment: Developing an Algorithmic Accountability Industry for Facial Recognition Technology in Law Enforcement Patrick K. Lin Brooklyn Law School Date Posted: 30 Apr 2022	96
10.	Should the Common Law Authorize Random Stops on Private Property Colton Fehr Simon Fraser University Date Posted: 16 Feb 2022 [new to top ten]	89

Jones on The Future of Law and Neuroscience

Owen D. Jones (Vanderbilt University - Law School & Dept. of Biological Sciences) has posted The Future of Law and Neuroscience (63 William & Mary L. Rev. 1317 (2022) (Symposium Issue: The Future of Law and Neuroscience)) on SSRN. Here is the abstract:

 

I was asked to speculate about where the field of Law & Neuroscience may be ten years from now. In that spirit (and while recognizing that the future rarely complies with our predictions) I attempt here some extrapolations. I first consider potential advances in the technologies for monitoring and manipulating brain states, the techniques for analyzing brain data, and the efforts to further integrate relevant fields. I then consider potential neurolaw developments relevant to: (1) detecting things law cares about; (2) individualizing developmental states and brain states; (3) evidence-based legal reforms; (4) legal decision-making; and (5) brain-brain interfaces.

Hessick on Prosecutor Lobbying

Carissa Byrne Hessick (University of North Carolina School of Law) has posted The Prosecutors and Politics Project: Prosecutor Lobbying in the States, 2015-2018 on SSRN. Here is the abstract:

 

This report presents the findings of a national study of prosecutor lobbying in state legislatures. American prosecutors are active lobbyists who routinely support making the criminal law harsher. During the years 2015 to 2018, state and local prosecutors were involved in more than 25% of all criminal-justice-related bills introduced in the 50 state legislatures. Prosecutors were nearly twice as likely to lobby in favor of a law that created a new crime or otherwise increased the scope of criminal law than a law that would create a defense, decriminalize conduct, or otherwise narrow the scope of criminal law. And when state prosecutors lobbied in favor of a bill, it was more than twice as likely to pass than an average bill.

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Leong et al. on Loan Sharks, Law Enforcement, and Welfare

Kaiwen Leong, Huailu Li, Nicola Pavanini and Christoph Walsh (Nanyang Technological University (NTU), Fudan University, School of Economics, Tilburg University and Tilburg University - Tilburg University School of Economics and Management) have posted The Welfare Effects of Law Enforcement in the Illegal Money Lending Market on SSRN. Here is the abstract:

 

We estimate a structural model of borrowing and lending in the illegal money lending market using a unique panel survey of 1,090 borrowers taking out 11,032 loans from loan sharks. We use the model to evaluate the welfare effects of alternative law enforcement strategies. We find that a large enforcement crackdown that occurred during our sample period raised interest rates, lowered the volume of loans, increased the lenders' unit cost of harassment, decreased lender profits, and decreased borrower welfare. We compare this strategy to targeting borrowers and find that targeting medium-performing borrowers is the most effective at lowering lender profits.