CrimProf Blog

Bala on Children's DNA

Nila Bala (The Policing Project) has posted Who Owns Children's DNA? on SSRN. Here is the abstract:

 

This Article examines the control and use of children’s DNA as an analytic exploration, asking who owns children’s DNA. In doing so, I bridge gaps between three different literatures: family law, criminal law, and property. I argue that we should conceive of DNA as property, and with respect to children, DNA as their own property. If DNA is conceptualized as the child’s property, it recognizes the importance and value of DNA, while leading to much stronger safeguards against law enforcement encroachment than current laws provide. A property interest is also why parental consent is insufficient to expose and relinquish children’s DNA to law enforcement. Providing for a property interest in children’s DNA reflects the importance of moving away from a framework of ownership to one of stewardship—in both the way we think of children’s DNA, but also the way we think of children themselves.

Lyon & Lamb on Policy-Minded Developmental Research

Thomas D. Lyon and Michael Lamb (University of Southern California Gould School of Law and University of Cambridge) have posted The Promise and Problems of Policy-minded Developmental Research: Recognizing our Implicit Value Judgments and the Limits of our Research (Forthcoming in Redlich, A.D. & Quas, J.A., eds., The Handbook on Developmental Psychology and the Law (Oxford University Press)) on SSRN. Here is the abstract:

 

In this commentary, we emphasize several themes: (1) the importance of recognizing the value judgments that sometimes underlie research; (2) the ways in which researchers’ focus on outcomes often clashes with a legal focus on rights; and (3) the need for researchers to acknowledge the limitations of their findings when making policy prescriptions. These themes are interrelated, because researchers are accustomed to thinking of their work as fact-based rather than value-laden, but must confront values when they argue that their research has implications for public policy, particularly when they acknowledge uncertainty.

Frohock on Reading "Lolita" as a Sentencing Memorandum

Christina Frohock (University of Miami - School of Law) has posted Legal Fiction: Reading Lolita as a Sentencing Memorandum (Albany Law Review, Vol. 86 (Forthcoming 2022-23)) on SSRN. Here is the abstract:

 

The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief. The story emerges from the law. This Article proposes inverting that focus so that we identify the law within a narrative. Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum. That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se. In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative. The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant. This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy. The notion of law without sympathy thus rings hollow. Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice. Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.

Mohamed on The Hidden Harm of Illegal Orders

Saira Mohamed (University of California, Berkeley - School of Law) has posted Abuse by Authority: The Hidden Harm of Illegal Orders (Iowa Law Review 2022) on SSRN. Here is the abstract:

 

When a leader orders a subordinate to commit a crime—to kill anything that moves, as at My Lai; to extract information no matter what it takes, as at Abu Ghraib; to execute prisoners of war, as at Biscari—how should the law and a society respond? Often we ignore the leader and blame the “bad apple” subordinate who failed to do the right thing. Or, when a leader is punished, domestic and international criminal law regard them in relation to their subordinate’s offense, either as an accomplice or perhaps a perpetrator; the order simply offers the pathway to rendering the superior a party to the crime. The law says nothing, however, about an entire dimension of wrongdoing that this Article highlights: The illegal order is an abuse of the authority the leader holds over their subordinates, a misuse of control over another, a betrayal of what was supposed to be a relationship of protection, an infliction of suffering on those who—even if they themselves become perpetrators legitimately subject to punishment—are also victims of their leaders’ violation of the duty to ask of them only what is right.

This Article urges a new framing of the illegal order as a wrong by the superior against the subordinate.

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Sobol on De Facto Disenfranchisement of Criminal Defendants

Neil L. Sobol (Texas A&M University School of Law) has posted Defeating De Facto Disenfranchisement of Criminal Defendants (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In a democracy, voting is not only an important civic duty but a right owed to its citizens. However, by operation of law, forty-eight states deny voting rights to individuals based on a criminal conviction. This de jure disenfranchisement has been under attack by activists and scholars as an improper collateral consequence that disproportionately impacts people of color. Although recent years have seen substantial reforms to re-enfranchise defendants, an estimated 5.17 million defendants were still ineligible to vote in 2020.

While efforts to address de jure disenfranchisement continue to be necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants, who have the legal right to vote but are prevented from exercising it.

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Daley & Carruthers on Prosecutorial Blanket Declination Policies

Alyssa Shea Daley and Jacob Carruthers (Ohio State University (OSU), Michael E. Moritz College of Law, Students and affiliation not provided to SSRN) have posted Judicial Review of Prosecutorial Blanket Declination Policies (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

Across the country, prosecutors are creating directives that foreclose prosecution of particular crimes. These directives can go by many names, but we will refer to them as blanket declination policies (“BDPs”). BDPs are a primary reason that the criminal justice reform movement continues to focus on prosecutorial elections as a means for reform. It is not difficult to understand why: in an era of historic political polarization, legislating is difficult, and BDPs offer an opportunity for reform advocates to avoid what some may consider dysfunctional legislatures. This Note argues that BDPs produce an inherently corrosive effect on the rule of law and separation of powers. This Note also proposes a means by which the judiciary can effectively monitor executive overreach, without the judiciary itself venturing beyond its circumscribed power.

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Plato-Shinar on Financial Privacy and Duties of Disclosure

Ruth Plato-Shinar (Netanya Academic College, Israel) has posted The Right to Financial Privacy in an Era of Mandatory Duties of Disclosure (38 Banking & Finance L. Rev. -- (2022)) on SSRN. Here is the abstract:

 

The article deals with bank secrecy and the customer's right to financial privacy from a constitutional point of view. It contends that despite the great importance of the right to financial privacy, various interests may override it and justify a mandatory disclosure of information. The article proposes a formula for balancing the right with conflicting interests, and for determining situations in which the duty of disclosure should prevail.

For this purpose, the article analyses three mandatory reporting duties: In the domestic arena - the reporting duty under the anti-money laundering regime; in the international arena – the duty to report to foreign tax authorities the accounts of customers with foreign citizenship; and in the commercial arena - the reporting duty under the credit data sharing regime.

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Johnson et al. on The Aftermath of Atkins v. Virginia

Sheri Lynn Johnson, John H. Blume and Brendan Van Winkle (Cornell Law School, Cornell Law School and Independent) have posted Atkins v. Virginia at Twenty: Still Adaptive Deficits, Still in the Developmental Period (Forthcoming, Washington and Lee Law Review, Vol. 28, No. 1, 2022) on SSRN. Here is the abstract:

 

In 2002, in Atkins v. Virginia, the United States Supreme Court held that persons with intellectual disability could not be executed. The Court determined that imposing the ultimate punishment on individuals with intellectual disability was disproportionate and thus was cruel and unusual punishment barred by the Eighth Amendment. But it continues to happen. This article examines how recalcitrant state courts and legislatures, relying primarily upon a single, ill-advised sentence in the Atkins decision, have created procedural and substantive obstacles that often effectively nullify the constitutional ban and how the federal courts, often equally recalcitrant, have, for the most part, refused to intervene.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Computer Crime Law (Introduction) Orin S. Kerr University of California, Berkeley School of Law Date Posted: 24 Jun 2022	435
2.	Sex Exceptionalism in Criminal Law Aya Gruber University of Colorado Law School Date Posted: 27 Jul 2022	281
3.	Vagueness and Federal-State Relations Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 06 Aug 2022 [4th last week]	128
4.	Retributivism Mitchell N. Berman University of Pennsylvania Carey Law School Date Posted: 01 Jul 2022 [6th last week]	109
5.	The Fallacy of Systemic Racism in the American Criminal Justice System Paul J. Larkin and GianCarlo Canaparo The Heritage Foundation and The Heritage Foundation Date Posted: 17 Aug 2022 [new to top ten]	95
6.	Demonizing Our Sisters Through Epistemic Oppression Yvette Butler University of Mississippi - School of Law Date Posted: 22 Jul 2022 [7th last week]	93
7.	Battle for Our Souls: A Psychological Justification for Corporate and Individual Liability for Organizational Misconduct Jennifer Arlen and Lewis A. Kornhauser New York University School of Law and New York University School of Law Date Posted: 19 Jul 2022 [8th last week]	89
8.	How To Read a Corporation's Mind Mihailis Diamantis University of Iowa - College of Law Date Posted: 22 Jul 2022 [9th last week]	78
9.	Disentangling the Civil-Carceral State: An Abolitionist Framework for the Non-Criminal Response to Intimate Partner Violence Emily M. Poor University of Baltimore School of Law Date Posted: 17 Aug 2022 [10th last week]	77
10.	Countermajoritarian Criminal Law Michael L. Smith University of Idaho College of Law Date Posted: 06 Aug 2022 [new to top ten]	72

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Computer Crime Law (Introduction) Orin S. Kerr University of California, Berkeley School of Law Date Posted: 24 Jun 2022	435
2.	The Original Meaning of “Due Process of Law” in the Fifth Amendment Lawrence B. Solum and Max Crema University of Virginia School of Law and affiliation not provided to SSRN Date Posted: 10 May 2022	337
3.	A Theory for Evaluating Evidence Against the Standard of Proof Kevin M. Clermont Cornell Law School Date Posted: 20 Jul 2022 [4th last week]	126
4.	Fourteenth Amendment Confrontation Evan D. Bernick Northern Illinois University - College of Law Date Posted: 06 Aug 2022 [5th last week]	123
5.	Beyond Binary Thinking: Addressing the Biases That Threaten the Progressive Prosecution Movement Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 06 May 2022 [7th last week]	90
6.	Canadian Policing: Why and How it Must Change Kent Roach University of Toronto - Faculty of Law Date Posted: 01 Jul 2022 [10th last week]	70
7.	'The World of Illusion Is at My Door': Why Panetti v. Quarterman Is a Legal Mirage Michael L. Perlin, Talia Roitberg Harmon and Haleigh Kubiniec New York Law School, Niagara University and Niagara University Date Posted: 01 Aug 2022 [new to top ten]	62
8.	A Principled Approach to Assessing the Absence of Motive to Lie in Sexual Assault Cases David M Tanovich University of Windsor - Faculty of Law Date Posted: 06 Aug 2022 [new to top ten]	51
9.	Fourth Amendment Notice in the Cloud Jesse Lieberfeld and Neil M. Richards Cordell Institute for Policy in Medicine & Law and Washington University School of Law Date Posted: 23 Aug 2022 [new to top ten]	43
10.	Legal Fiction: Reading Lolita as a Sentencing Memorandum Christina Frohock University of Miami - School of Law Date Posted: 20 Aug 2022 [new to top ten]	43

McLeod on Lay Assessment of Desert

Marah Stith McLeod (Notre Dame Law School) has posted Is the Principle of Desert Unprincipled in Practice? on SSRN. Here is the abstract:

 

Scholars have long debated whether criminal penalties should be based on what defendants deserve (as retributivists argue) or on the practical benefits that sanctions may achieve (as utilitarians believe). In practice, most states take a pluralistic approach: they treat both desert and utility as important to punishment, with desert operating, at least on paper, as a limiting principle.

Can desert, however, actually limit punishment? Critics answer no. They claim that desert is an indefinite and malleable notion, easily invoked to mask discrimination and rationalize draconian sanctions. Laws in America often emphasize desert, they observe, while feeding mass incarceration.

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Larkin & Canaparo on The Fallacy of Systemic Racism in the War on Drugs

Paul J. Larkin and GianCarlo Canaparo (The Heritage Foundation and The Heritage Foundation) have posted The Fallacy of Systemic Racism in the American 'War on Drugs' (Chapman Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Critics of the criminal justice system have repeatedly charged it with systemic racism. A companion Article to this one, which will be published in the same Volume, considers and rejects that claim in the context of the criminal justice system in general. The claim reaches its apogee, however, in the specific context of the “War on Drugs.” This Article builds on the first and considers whether the country's approach to drug crime is systemically racist. It also considers whether the solutions proffered by proponents of the theory of systemic racism would cure the problems they identify. The answer to both questions is no. No matter how systemic racism is defined, the War on Drugs does not fit the definition. Additionally, many of the proffered solutions would, in fact, harm the very people they aim to help. Ultimately, the claim that the War on Drugs is systemically racist is unjustified and should be rejected.

Wildenthal on An Independent Attorney General

Bryan H. Wildenthal (Thomas Jefferson School of Law) has posted Proposed Attorney General Amendment on SSRN. Here is the abstract:

 

Recent events demonstrate the compelling need to amend the Constitution to guarantee the independence of the office of the U.S. Attorney General. I personally have confidence in the integrity of Attorney General Merrick Garland. But regardless of what anyone thinks of him, it is deeply troubling to contemplate the storm of political controversy and attacks upon him, the Department of Justice, and the FBI (part of that department and under his supervision), following his approval of a search of former President Trump's private residence.

It is now clear that millions of Americans, on both sides of our widening and increasingly dangerous political divide, will never have confidence in any Attorney General who is a political appointee subject to dismissal by, and perceived as beholden to, any incumbent president.

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Silva on Housing Policy and Criminal Justice Reform

Lahny Silva (Indiana University - Robert H. McKinney School of Law) has posted The Trap Chronicles, Vol. 1: How US Housing Policy Impairs Criminal Justice Reform (Maryland Law Review, Vol. 80, No. 565, 2021) on SSRN. Here is the abstract:

 

Close to fifty years after President Richard Nixon’s 1971 declaration of a War on Drugs, America is attempting to remedy the aftermath. Today, the War is generally considered a failure. Despite all the arrests and prosecutions, the War has been unsuccessful in accomplishing its two touted objectives: eliminating drug trafficking and eliminating drug addiction in the United States. America paid dearly; it was extremely expensive, disproportionately impacted communities of color, and took hundreds of thousands of prisoners. This final cost was highlighted when the “the land of the free” earned the number one spot for having the highest incarceration rate in the world.

Recognizing the substantial costs associated with wartime criminal laws and sentencing practices, a criminal justice reform is currently sweeping through legislatures across the country.

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Hamilton on Modelling Pretrial Detention

Melissa Hamilton (University of Surrey School of Law) has posted Modelling Pretrial Detention (American University Law Review, Vol. 72, 2022) on SSRN. Here is the abstract:

 

Pretrial detention has become normative in contemporary criminal justice, rather than the exception to a rule of release for individuals not convicted of any crime. Even the opportunity for release with a bond amount is often not in fact enjoyed for the many individuals who are unable to afford to pay. Defendants detained pending trial suffer numerous consequences in the negative impacts to their own legal cases in terms of being more likely to feel pressured to plead guilty and to receive a prison sentence. The high numbers of those detained appear to disproportionately impact minorities and has contributed to mass incarceration. As a result of these issues, the country is in the midst of a third reform movement in terms of policies to increase the rate of pretrial release without financial surety and to incorporate algorithmic risk assessment tools to isolate the few individuals who pose a high likelihood of failure if released pending trial.

This Article offers a case study of an important site engaged in pretrial reforms.

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Larkin & Canaparo on The Fallacy of Systemic Racism in American Criminal Justice

Paul J. Larkin and GianCarlo Canaparo (The Heritage Foundation and The Heritage Foundation) have posted The Fallacy of Systemic Racism in the American Criminal Justice System (Chapman Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Critics of the criminal justice system have repeatedly charged it with systemic racism. It is a tenet of the “war” on the “War on Drugs,” it is a justification used by the so-called progressive prosecutors to reject the “Broken Windows” theory of law enforcement, and it is an article of faith of the “Defund the Police!” movement. Yet, few people have defined what they mean by that term. This Article examines what it could mean and tests the truth of the systemic racism claim under each possible definition. None stands up to scrutiny.

One argument is that the American citizens who run our many institutions are motivated by racial animus. But the evidence is that racial animus is no longer tolerated in society, and what is more, the criminal justice system strives to identify it when it does occur and to remedy it.

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Kahn-Fogel on Judicial Deference to Police Expertise in Fourth Amendment Decisionmaking

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Power, Responsibility, and Judicial Deference to Police Expertise in Fourth Amendment Decisionmaking on SSRN. Here is the abstract:

 

In its Fourth Amendment jurisprudence, the Supreme Court relies on a version of the reasonable person standard to assess probable cause and reasonable suspicion. In applying that standard, the Court has regularly deferred to law enforcement officers’ ostensibly superior capacities for recognizing patterns of criminal activity. On the other hand, the Court has clarified that the heightened abilities of law enforcement agents extend only to qualitative analysis; technical assessment of probability is, under this approach, beyond the ken of the police. This Article makes an extended analogy to tort law’s reasonable person standard to urge a more nuanced approach. Under a tort-inspired model, courts would require police officers to base their decisions on quantitative data when such data can provide the best evidence of whether criminal activity is afoot. Likewise, this framework would require law enforcement officers to use their putatively elevated powers not merely to ferret out crime but also to exercise restraint when their expertise should alert them to the absence of suspicious circumstances.

Fox on Doctors Who Defy Abortion Laws

Dov Fox (University of San Diego: School of Law) has posted What Will Happen if Doctors Defy the Law to Provide Abortions? (New York Times (online), July 17, 2022) on SSRN. Here is the abstract:

 

Some doctors who identify as conscientious providers in post-Roe America may seek to provide abortions in violation of state laws, just as many did before Roe. A federal statute ought to protect clinician conscience in principled ways — not only for those who deny care, but also for those who deliver it. And if lawmakers won’t protect conscientious providers, then judges should. Courts can recognize a legal defense of medical disobedience that would significantly reduce the punitive sanctions that some states impose for supplying clinically reasonable services in the name of conscience. This partial defense should also waive possible collateral consequences of a felony conviction, such as license revocation and disenfranchisement. That mitigation would go a long way to repair the one-sided exemptions already entrenched across the United States.

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Poor on Abolitionism and Civil Remedies for Intimate Partner Violence

Emily M. Poor (University of Baltimore School of Law) has posted Disentangling the Civil-Carceral State: An Abolitionist Framework for the Non-Criminal Response to Intimate Partner Violence on SSRN. Here is the abstract:

 

The carceral state is entangled in the ostensibly non-criminal social and legal response to intimate partner violence (IPV). While feminists and anti-IPV advocates increasingly recognize the harmful effects of the carceral state’s involvement in addressing violence, less attention has been to civil remedies and services which are contingent upon interaction with the carceral state. At the same time, the police abolition movement has gained rhetorical momentum, but it remains focused on the traditional role of police in affirmatively regulating conduct, without adequately recognizing how people are coerced into interacting with the carceral state to access resources.

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Annamma & Morgan on Youth Incarceration & Abolition

Subini Annamma and Jamelia Morgan (Stanford University - Graduate School of Education and Northwestern University - Northwestern Pritzker School of Law) have posted Youth Incarceration & Abolition on SSRN. Here is the abstract:

 

The COVID-19 pandemic has laid bare the dangers of the juvenile legal system; this should make it harder to look away from the societal inequities that are exacerbated by youth incarceration. Indeed, the current moment, including the unprecedented nationwide protests in response to the murders of George Floyd and Breonna Taylor in summer 2020, has illuminated the power of social movements working to abolish the prison industrial complex, and, as legal scholars have argued, lawyers and law professors should engage with these movements and their calls for abolition and transformative change. Yet conversations on abolition are mainly centered on adult prisons. While appreciating and supporting the call for abolishing adult prisons, the absence of youth incarceration from abolitionist movements and discourse is concerning given the violence and disparities that are reflected in youth incarceration.

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