CrimProf Blog

Lavoie et al. on Unintentional Reports of Maltreatment by Children

Jennifer Lavoie, Shanna Williams, Thomas D. Lyon and Jodi Quas (University of Edinburgh, University of Southern California Gould School of Law, University of Southern California Gould School of Law and University of California, Irvine - Department of Criminology, Law and Society) have posted Do Children Unintentionally Report Maltreatment? Comparisons of Disclosures of Neglect versus Sexual Abuse (Child Abuse and Neglect, 133, 105824 (2022)) on SSRN. Here is the abstract:

 

Children's initial reports often play a key role in the identification of maltreatment, and a sizeable amount of scientific research has examined how children disclose sexual and physical abuse. Although neglect constitutes a large proportion of maltreatment experiences, relatively little attention has been directed toward understanding whether and how children disclose neglect. The overarching aim of the present study was to document this process by comparing disclosure patterns in cases of neglect to those in cases of sexual abuse. Redacted jurisdiction reports (N = 136) of substantiated dependency cases of neglect (n = 71) and sexual abuse (n = 65) in 4- to 17-year-olds were coded for why maltreatment was suspected, and for children's perceived awareness and disclosure of the maltreatment. Neglect was most often initially suspected via contact with emergency services (e.g., police, emergency medical services), whereas sexual abuse was most often initially suspected as a result of children's statements. Children evidenced greater perceived awareness of sexual abuse than neglect and were more likely to disclose the former in their first investigative interview. Perceived awareness was further associated with a higher likelihood of children's statements initiating discovery of maltreatment and disclosing in the first investigative interview. Children may benefit from greater knowledge about their needs for safety, supervision, and provision in the home, which could increase the likelihood they would disclose neglect. Such, in turn, could lead to earlier interventions for children and families.

Thomas & Diamantis on Marketing Corporate Criminal Law

W. Robert (Will) Thomas and Mihailis Diamantis (University of Michigan Ross School of Business and University of Iowa - College of Law) have posted A Marketing Pitch for Corporate Criminal Law (1 Stetson Business Law Review __ (forthcoming)) on SSRN. Here is the abstract:

 

Corporate criminal law needs a marketing makeover. In the public relations frenzy that follows a corporate criminal investigation, authorities are outgunned and outmaneuvered. Judging by the pastiche of '90s era design choices on the website the Department of Justice uses to announce corporate penalties, authorities are either unaware of the important of marketing or do not care. Prosecutors aren’t marketing professionals. Nor, for that matter, are most scholars writing about corporate misconduct.

Humdrum publicity dilutes corporate sanctions and dulls the edge of criminal justice. Criminal dispositions should single out truly contemptible practices from merely sharp, unproductive, or undesirable ones. In this way, criminal law gives victims the recognition they deserve and deters wrongdoers who would preserve their good name. Corporate punishment today falls far short of these communicative ambitions. It is a fleeting affair diluted by civil and administrative alternatives, PR spin, and a frenetic media environment. It can be hard even to identify after the fact who the corporate criminals are. Unsurprisingly, corporations view criminal charges as inconvenient economic uncertainties and criminal sanctions as mere costs of doing business. Public perceptions have largely followed suit.

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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	354
2.	Sex Exceptionalism in Criminal Law Aya Gruber University of Colorado Law School Date Posted: 27 Jul 2022	266
3.	Medical Disobedience Dov Fox University of San Diego: School of Law Date Posted: 08 Aug 2022	263
4.	Vagueness and Federal-State Relations Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 06 Aug 2022 [5th last week]	121
5.	Criminal Terms Anna Roberts Brooklyn Law School Date Posted: 17 Jun 2022 [4th last week]	115
6.	Retributivism Mitchell N. Berman University of Pennsylvania Carey Law School Date Posted: 01 Jul 2022	108
7.	Demonizing Our Sisters Through Epistemic Oppression Yvette Butler University of Mississippi - School of Law Date Posted: 22 Jul 2022	89
8.	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	78
9.	How To Read a Corporation's Mind Mihailis Diamantis University of Iowa - College of Law Date Posted: 22 Jul 2022	76
10.	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 [new to top ten]	68

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 [2nd last week]	354
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 [1st last week]	330
3.	AEDPA Repeal Brandon L. Garrett and Kaitlin Phillips Duke University School of Law and affiliation not provided to SSRN Date Posted: 21 Jun 2022 [4th last week]	175
4.	A Theory for Evaluating Evidence Against the Standard of Proof Kevin M. Clermont Cornell Law School Date Posted: 20 Jul 2022 [7th last week]	123
5.	Fourteenth Amendment Confrontation Evan D. Bernick Northern Illinois University - College of Law Date Posted: 06 Aug 2022 [10th last week]	108
6.	Brief of Amici Curiae Five Excluded Jurors, Boys v. Louisiana (21-1110) Thomas Frampton University of Virginia School of Law Date Posted: 06 Apr 2022 [9th last week]	94
7.	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 [new to top ten]	87
8.	Defending the Castle: Search Incident to Arrest After R v Stairs Colton Fehr Thompson Rivers University, Faculty of Law Date Posted: 20 Jun 2022 [new to top ten]	75
9.	Understanding Criminal Justice Innovations Meghan J. Ryan Southern Methodist University - Dedman School of Law Date Posted: 20 Jun 2022 [new to top ten]	68
10.	Canadian Policing: Why and How it Must Change Kent Roach University of Toronto - Faculty of Law Date Posted: 01 Jul 2022 [new to top ten]	67

Heflin on Red Flag Laws

Justin Heflin (West Virginia University, College of Business & Economics, Department of Economics, Students) has posted Are Red Flag Laws a Green Light to Save Lives? on SSRN. Here is the abstract:

 

Mass shootings have become a hot topic of discussion in the United States in recent years. Policymakers have taken action through state legislation to develop a policy that would reduce the number of mass shootings. Red Flag Laws, also known Extreme Risk Protective Orders (ERPO), is a form of gun control policy designed to remove firearms from someone who presents a danger to themselves or others. I examine the effect that Red Flag Laws have on suicide rates and homicide rates in the states that have passed and implemented a Red Flag Law using a difference-in-differences approach. I find that suicide rates and homicide rates decrease by just over 6% and 10%, respectively, in the states that have a Red Flag Law. These effects are driven mainly by the states that also allow both family members and law enforcement to petition a state court for the removal of firearms.

Duff on When We Should Plead Guilty

R. A. Duff (University of Stirling - Department of Philosophy) has posted When Should We Plead Guilty? (in Pleading Guilty, ed. Julian Roberts and Jesper Ryberg, Forthcoming) on SSRN. Here is the abstract:

 

In a decent polity, this chapter argues, defendants in criminal trials should plead guilty if, but only if, they know that they are guilty. One who knows that he is guilty owes it to his fellow citizens to assist the criminal law’s enterprise of calling public wrongdoers to account, and to answer to them for his wrongdoing; one who knows that she is innocent, or does not know whether she is guilty, also has a civic responsibility to assist that enterprise, and to submit herself to the judgment of the court (which speaks in the polity’s name) on her guilt or innocence. In a dystopian society, by contrast, defendants may have no such responsibility: even if a guilty plea can have the meaning that it should have, as a formal confession of wrongdoing, that might not be a confession that citizens can be expected to make, given its dystopian context and destructive consequences. In such a context, unlike that of a decent polity, a modest sentence reduction might be justified as a reward for those who plead guilty when they have no duty to do so.

Frohock & Marcus on Why Federal Prosecutors Should Record Pretrial Interviews

Christina Frohock and Jeffrey Marcus (University of Miami - School of Law and Marcus Neiman Rashbaum & Pineiro LLP) have posted Witness Hide-and-Seek: Why Federal Prosecutors Should Record Pretrial Interviews (Seton Hall Law Review, Vol. 53, No. 3 (forthcoming January 2023)) on SSRN. Here is the abstract:

 

This Article pays long overdue attention to a federal appellate court’s warning against “playing hide-and-seek” with witnesses. Specifically, prosecutors should record interviews. While courtroom cameras dominate the topic of judicial transparency, cameras can play a critical role in a sleepier corner of criminal proceedings: pretrial witness interviews. The Article first tracks the history of open judicial proceedings as a tradition of our Anglo-American jurisprudence. Next, the Article identifies the normative thread running through that history: fairness may suffer when cameras transform public proceedings into publicized proceedings. Finally, the Article argues that this same issue of fairness applies to pretrial witness interviews. While fairness provides a reason against proceedings that are overly publicized, it provides a reason for interviews that are more public. Judicial proceedings are designed to ascertain truth; hidden off camera, witness interviews may obscure the truth. Recording witness interviews would lift those interviews on a par with other discovery aspects of a criminal proceeding and put a welcome end to games of witness hide-and-seek.

Fox on Medical Disobedience

Dov Fox (University of San Diego: School of Law) has posted Medical Disobedience (Harvard Law Review, Vol. 136, Forthcoming) on SSRN. Here is the abstract:

 

The conscience regime that governs American healthcare is broken. When physicians or pharmacists deny treatment by appeal to their heartfelt convictions, conscience laws in most states shield them from being fired or disciplined. In many, they can’t be held liable for malpractice or prosecuted for endangering patients, however badly they needed care, or serious the resulting harm. Refusers don’t even have to tell patients which procedures are medically indicated, let alone help them to access those options elsewhere. So long as refusers invoke conscience, they almost always go scot-free. There’s virtually no such protection for clinicians who have equally conscientious reasons to perform interventions that their employer or state rules out. Emboldened by recent Supreme Court decisions in Little Sisters of the Poor and Dobbs, hospitals and legislatures are prohibiting more and more services, as clinicians lay their careers and freedom on the line to supply forbidden forms of care that range from abortion, emergency contraception, and long-term birth control to puberty blockers, advance directives, and aid-in-dying.

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Tanovich on Absence of Motive to Lie in Sexual Assault Cases

David M Tanovich (University of Windsor - Faculty of Law) has posted A Principled Approach to Assessing the Absence of Motive to Lie in Sexual Assault Cases ((2022) 79 Criminal Reports 230-243) on SSRN. Here is the abstract:

 

When can a trier of fact take into account the absence of a complainant's motive to lie in assessing credibility in sexual assault cases. How much weight can be attributed to that absence? Resolution of these questions has led to a surprisingly sizable number of appellate cases. R v Gerrard 2022 SCC 13 is now the leading case on the issue. It confirms somewhat cryptically that the absence of evidence of a motive to fabricate can be considered in assessing credibility. Clarity on the issue is still needed. In particular, what consitutes "proved absence" and/or evidence of an absence of motive. This piece argues that courts need to start afresh. If we better understand what courts are trying to get at by referencing the issue of motive as being "proved"and, we apply the everyday rules of evidence, was can escape from this confusing trap of trying to fit the issue into a particular box. When the cases talk abut proved absence (or presence) of motive, the phrase should be interpreted to mean that there is a sufficient and compelling evidentiary basis or foundation to allow for the conclusion or inference to be drawn. After setting out how the ordinary rules of evidence and policy support this principled approach to the issue, the article offers some model instructions on the issue.

Bernick on Fourteenth Amendment Confrontation

Evan D. Bernick (Northern Illinois University - College of Law) has posted Fourteenth Amendment Confrontation on SSRN. Here is the abstract:

 

Crawford v. Washington was initially hailed as a triumph—a much-needed reinvigoration of the Sixth Amendment right of criminal defendants “to be confronted with the witnesses against [them].” It has few supporters today, and criticisms of it have taken on heightened importance in the wake of constitutional decisions involving the “incorporation” of the Bill of Rights against the states. In NYSRPA v. Bruen the Supreme Court flagged an “ongoing scholarly debate” about whether incorporated rights should be applied as they were understood in 1791—when the Bill of Rights was ratified—or in 1868—when the Fourteenth Amendment incorporated them. Bruen thus broadened the scope of historical inquiry into a diminished precedent.

This is the first Article to explore the meaning of the right to confront witnesses during the antebellum struggle against slavery.

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Ismawansa et al. on Comparative Restorative Justice

Ismawansa, Madiasa Ablisar and Alvi Syahrin (Universitas Sumatera Utara, Universitas Sumatera Utara and Universitas Sumatera Utara) have posted Settlement of Criminal Cases through Restorative Justice in Japan and the United States of America: A Law Comparison on SSRN. Here is the abstract:

 

In solving criminal cases, restorative justice is often performed for juvenile offenders. The purpose of this study was to describe restorative justice in the United States and Japan. There are many terminologies used to describe the concept of restorative justice, such as communitarian justice, positive justice, relational justice, reparative justice, and community justice. As an alternative dispute resolution, the concept of restorative justice is highly suited for Indonesia and should be immediately implemented as an effort to reform the law. In Japan, restorative justice promotes apologies, provides compensation to victims, and instills a sense of guilt in the perpetrators. In the United States, the emphasis is on providing compensation to victims. This paper uses a comparative legal approach between Indonesia, Japan, and the United States. A legal approach is used to analyze criminal cases settled through restorative justice. The results showed that restorative justice is the essence of applied processes that encourage commutative justice. As a restorative justice approach, penal mediation is present in the Criminal Code Draft so that criminal cases do not depend on a judge's decision beforehand to be settled, encouraging the use of commutative justice.

Lubin on Ransomware

Asaf Lubin (Indiana University Maurer School of Law) has posted The Law and Politics of Ransomware (Vanderbilt Journal of Transnational Law, Vol. 55, 2022) on SSRN. Here is the abstract:

 

What do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly 4,000 ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, “attacks leveled out at 20,000 to 30,000 per day in the US alone.” That is a ransomware attack every 11 seconds, each of which cost victims on average 19 days of network downtime and a payout of over $230,000. In 2021, global costs associated with ransomware recovery exceeded $20 billion.

This Article offers an account of the regulatory challenges associated with ransomware prevention.

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Loehr on Political Exclusion and the Excessive Punishments

Daniel Loehr has posted an abstract of Deference Despite Disenfranchisement: How Eighth Amendment Law Ignores Political Exclusion (Forthcoming, Journal of Criminal Law and Criminology, Vol. 113, No. 2, 2023) on SSRN. Here is the abstract:

The Eighth Amendment lies dormant in the age of mass incarceration. Over and over, the Supreme Court has held that for most people, the Eighth Amendment places no limit on extremely long sentences, even sentences of life without parole for simple marijuana possession. This Article shows how another phenomenon, widespread felony disenfranchisement, undermines the Court’s rationale for its Eighth Amendment austerity. The topics of felony disenfranchisement and Eighth Amendment law are both well represented in legal scholarship, but the implications of the former on the latter remain understudied.

To justify its retreat from enforcing the Eighth Amendment, the Court has repeated its belief that the legislative process is rational and legitimate and entitled to extreme deference.

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Smith on Countermajoritarian Criminal Law

Michael L. Smith (University of Idaho College of Law) has posted Countermajoritarian Criminal Law on SSRN. Here is the abstract:

 

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws, but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by identifying “countermajoritarian laws.”

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Reinert on Qualified Immunity

Alex Reinert (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Qualified Immunity's Flawed Foundation (California Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine – fundamental errors that have never before been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction – namely that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common-law immunity defenses. As this Article shows, the Derogation Canon has no appropriate role to play in interpreting Section 1983. Its viability has been continuously called into question for more than a century. Even when it has been applied, the canon has been used as a reason to disfavor displacement of common-law claims, not common-law defenses. And it is always operating in tension with a contrary canon that remedial statutes, like Section 1983, should be given a broad reading.

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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	304
2.	Sex Exceptionalism in Criminal Law Aya Gruber University of Colorado Law School Date Posted: 27 Jul 2022	241
3.	Medical Disobedience Dov Fox University of San Diego: School of Law Date Posted: 08 Aug 2022 [new to top ten]	214
4.	Criminal Terms Anna Roberts Brooklyn Law School Date Posted: 17 Jun 2022	108
5.	Vagueness and Federal-State Relations Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 06 Aug 2022 [new to top ten]	106
6.	Retributivism Mitchell N. Berman University of Pennsylvania Carey Law School Date Posted: 01 Jul 2022 [5th last week]	106
7.	Demonizing Our Sisters Through Epistemic Oppression Yvette Butler University of Mississippi - School of Law Date Posted: 22 Jul 2022	87
8.	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 [9th last week]	75
9.	How To Read a Corporation's Mind Mihailis Diamantis University of Iowa - College of Law Date Posted: 22 Jul 2022 [8th last week]	74
10.	Limiting Rights to Protect Morality: Upholding Charter Values as a Pressing and Substantial Objective Mark Friedman and Anthony Sangiuliano York University - Osgoode Hall Law School and Sage School of Philosophy, Cornell University Date Posted: 16 Jun 2022	60

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	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	319
2.	Computer Crime Law (Introduction) Orin S. Kerr University of California, Berkeley School of Law Date Posted: 24 Jun 2022	304
3.	The Constitution and Criminal Justice Abhinav Sekhri Delhi High Court Date Posted: 10 Jun 2022	198
4.	AEDPA Repeal Brandon L. Garrett and Kaitlin Phillips Duke University School of Law and affiliation not provided to SSRN Date Posted: 21 Jun 2022	168
5.	Nullification in Abortion Prosecutions: An Equilibrium Theory Peter Salib and Guha Krishnamurthi University of Houston Law Center and University of Oklahoma College of Law Date Posted: 02 Jun 2022	156
6.	Plea Bargaining’s Uncertainty Problem Jeffrey Bellin William & Mary Law School Date Posted: 27 Apr 2022	149
7.	A Theory for Evaluating Evidence Against the Standard of Proof Kevin M. Clermont Cornell Law School Date Posted: 20 Jul 2022 [8th last week]	120
8.	Racially Territorial Policing in Black Neighborhoods Elise C. Boddie Rutgers School of Law - Newark Date Posted: 29 Mar 2022 [9th last week]	101
9.	Brief of Amici Curiae Five Excluded Jurors, Boys v. Louisiana (21-1110) Thomas Frampton University of Virginia School of Law Date Posted: 06 Apr 2022 [10th last week]	94
10.	Fourteenth Amendment Confrontation Evan D. Bernick Northern Illinois University - College of Law Date Posted: 06 Aug 2022 [new to top ten]	87

Kolar on Felony Murder Liability for Homicides by Police

Maria T. Kolar (Oklahoma City University School of Law) has posted Felony Murder Liability for Homicides by Police Officers: Too Unfair & Too Much to Bear (Journal of Criminal Law and Criminology, Vol. 113, Issue No. 2 (2023)) on SSRN. Here is the abstract:

 

On November 23, 2020, a fifteen-year-old boy was gunned down by five Oklahoma City police officers, after he exited a convenience store and dropped the gun that he and a sixteen-year-old partner had earlier used to rob the store’s owner. Initially, the boy’s non-present partner was charged with first-degree (felony) murder for this killing. But after months of efforts by the boy's mother and local activists, the district attorney also charged five officers with first-degree manslaughter.

This case raises the question of whether Oklahoma—or any American state—can convict a defendant of felony murder based upon a killing that was a criminal homicide by a police officer. More broadly, it raises the question of whether a felony “participant” can be convicted of felony murder based upon a killing by a “nonparticipant,” who killed while resisting the underlying felony. Killings by “nonparticipants” include killings by responding police officers, as well as by bystanders and victims of the original felony.

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Sarch on Divergences Between Moral and Criminal Blame

Alex F. Sarch (University of Surrey School of Law) has posted Legitimate Divergence between Moral and Criminal Blame (Routledge Handbook of Responsibility (Max Kiener, ed.), Forthcoming) on SSRN. Here is the abstract:

 

Legal moralists think the substantive rules of the criminal law should mirror morality, while acknowledging that they inevitably will not do so perfectly. Thus, Doug Husak suggests that “deviations [from the moral ideal] should be regarded as occasions for regret, as invitations to try to do better.” This is especially plausible where the divergences are isolated practical compromises due to efficiency or resource constraints. But is it always a matter of deep regret when the content of criminal law diverges from morality? Might this not also be justifiable based on our principled commitments? If so, perhaps divergence from morality isn’t always an invitation to do better. This chapter argues that there are principled reasons, not always consequentialist in nature, for the criminal law to come apart from morality.

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Diamantis et al. on Regulating AI

Mihailis Diamantis, Rebekah Cochran and Miranda Dam (University of Iowa - College of Law, University of Iowa and University of Iowa, College of Law) have posted AI and the Law: Can Legal Systems Help Us Maximize Paperclips While Minimizing Deaths? on SSRN. Here is the abstract:

 

This Chapter provides a short undergraduate introduction to ethical and philosophical complexities surrounding the law’s attempt (or lack thereof) to regulate artificial intelligence.

Swedish philosopher Nick Bostrom proposed a simple thought experiment known as the paperclip maximizer. What would happen if a machine (the “PCM”) were given the sole goal of manufacturing as many paperclips as possible? It might learn how to transact money, source metal, or even build factories. The machine might also eventually realize that humans pose a threat. Humans could turn the machine off at any point, and then it wouldn’t be able to make as many paperclips as possible! Taken to the logical extreme, the result is quite grim—the PCM might even start using humans as raw material for paperclips.

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