CrimProf Blog

Leider on The Bipartisan Safer Communities Act

Robert Leider (George Mason University - Antonin Scalia Law School, Faculty) has posted Bipartisan Safer Communities Act (Firearms Law and the Second Amendment: Regulation, Rights, and Policy 104-19 (3d ed. 2022 supp.)) on SSRN. Here is the abstract:

 

In response to recent mass shootings, Congress passed the Bipartisan Safer Communities Act. The Act encouraged states to implement red flag laws, adopted a more punitive approach to federal gun control, expanded the domestic violence misdemeanors that prohibit firearm possession, and implemented more stringent regulations on young adults purchasing firearms. Because of the difficulties in passing federal gun control laws, Congress hastily passed the Act after a narrow group of bipartisan Senators agreed on the text. This stunted legislative process left the new law loaded with ambiguities and technical deficiencies. This essay explores the constitutional, doctrinal, and policy problems created by the Bipartisan Safer Communities Act.

Wang on Cyberflashing

Bo Wang (University of Sheffield) has posted A Critical Analysis of the Law Commission's Proposed Cyberflashing Offence (The Journal of Criminal Law 2022) on SSRN. Here is the abstract:

 

The Law Commission has proposed a new offence of cyberflashing to combat the problem of sending unsolicited images or videos of human genitals to others. It seems that what the Law Commission has in mind is not flashing per se, but cyber-nudity. Its proposal fails to comprehensively evaluate the adequacy of existing law and fails to balance the harm of a criminal conviction against the potential harm of cyberflashing. It shall be argued that the Law Commission seems to have conflated wrong with harm and that its harm claim is supported only by anecdotal evidence. The vast majority of cyberflashing cases, including most Airdropping and Bluetoothing cases, are already covered by existing law, leaving untouched only a handful of one-off Airdropping or Bluetoothing cases where the flasher did not intend to cause distress or anxiety and the victim did not apprehend imminent unlawful force. Thus, it is argued that this very narrowly tailored cyberflashing offence adds very little and that amending existing communication offences or harassment offences would provide more protection to victims as such offences could apply to a wide range of sexually harassing content, not just images or videos of human genitals.

Goodman on Insanity-Plea Bargains

Sarah Goodman has posted Insanity-Plea Bargains: A Constitutionally and Practically Good Idea? (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:

Plea bargaining is ubiquitous in the United States criminal legal system. Ninety-four percent of felony cases and ninety-nine percent of misdemeanor cases end in guilty pleas. Some scholars estimate that seventy-five percent of all guilty pleas are a plea bargain with the government. Mental illness is also prevalent in the United States, affecting over fifty percent of people at some point in their lifetime.

Given this prevalence, one would presume the criminal legal system would recognize and respond to defendants’ mental illnesses. Indeed, the criminal legal system developed two responsive pleas—Not Guilty by Reason of Insanity (NGRI) and Guilty But Mentally Ill (GBMI). At first glance, these pleas seem beneficial. Defendants who lack the moral or cognitive capacity to behave rationally should not be—and are not—held responsible for their actions.

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Wiersma on Gathering e-Evidence in the EU

Chris Wiersma has posted Policy Brief: The Gathering of Legal e-Evidence in the European Union on SSRN. Here is the abstract:

This Brief aims to contribute to the policy debates surrounding the upcoming EU Regulation on European Production and Preservation Orders for electronic evidence in criminal matters, currently in the final phase of negotiations. It has been reported that the trilogue in June 2022 held under the French Presidency around the Proposals - which aim to ease cross-border requests for and exchange of electronic data for use in criminal cases - was a turning point. On the occasion of the State of the Union Address in 2022 by the European Commission's President Von der Leyen, this policy brief discusses several legal and policy challenges in the area of judicial cooperation in the European Union. It advocates for a direction forward by using internationally agreed law and policy terms in practice. Clear regulatory terms are key to maintain and develop effective regimes for the retrieval of data across borders for the purpose of countering serious crimes. The Brief also mainly discusses the responsibility of online platforms and internet service providers in relation to terrorist and other, violent forms of propaganda. Besides International Human Rights, it is suggested that the EU Charter on Fundamental Rights should be used as a profound basis, not only for discussing the adoption of the above-mentioned, new Regulation, but also stimulating a more sustained dialogue between authorities and civil society in Member States.

Wallace-Wolf on A Participatory Theory of Privacy

Jordan Wallace-Wolf (University of Arkansas, William H. Bowen School of Law) has posted Fourth Amendment Privacy in Public: A Fundamental Theory With Application to Location Tracking (University of Missouri-Kansas City Law Review, Forthcoming) on SSRN. Here is the abstract:

 

When we walk out our front door, we are in public and other people may look at us. But intuitively, we don’t open ourselves up to unlimited scrutiny just by going outside. We retain some privacy, even in public. What is the source of this residual public-privacy, and how should the law recognize it without degrading the open character of public space?

The answer given by commentators, and most recently by the Supreme Court in Carpenter v. U.S., comes in the form of two related claims. The first is the chilling theory of the Fourth Amendment. According to this idea, the Fourth Amendment protects the exercise of First Amendments rights against the suppressive effects of government observation. The second is the mosaic theory of a search. According to this idea, a citizen suffers a Fourth Amendment search when the government amasses information about her from which it can infer her First Amendment activities, broadly understood.

I argue that both claims are flawed, and that their replacements should be sought from what I call the participatory theory of privacy.

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Lowenstein lazar & Darr on Male Rape

Ruthy Lowenstein Lowenstein lazar and Orna Alyagon Darr (Haim Striks Faculty of Law, College of Management and Sapir Academic College - School of Law) have posted Toward A Socio-Legal Theory of Male Rape (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

 

This Article seeks to carve out a new theoretical space for the analysis of male rape, a phenomenon that has long been neglected by legal and jurisprudential scholarship. We dispute common perceptions of male rape, most notably the centrality of consent in rape discourse, and show how male and female rape myths, while distinct, are upheld by similar paradigms of gender. Although it focuses on male rape, the Article proposes a broad theory of rape and gender.

The Article offers a comparative review of the scholarship on male rape in two settings: the community and prison. It collates the various studies on male rape in these settings, classifies the main elements of male rape, and points to the interrelations between the various scholarly works.

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Colgan on Revenue, Race, and Traffic Enforcement Reform

Beth A. Colgan (University of California, Los Angeles (UCLA) - School of Law) has posted an abstract of Revenue, Race, and the Potential Unintended Consequences of Traffic Enforcement Reform (North Carolina Law Review, Vol. 100, No. 4, Forthcoming) on SSRN. Here is the abstract:

 

In response to repeated and highly publicized killings of people at the hands of law enforcement during traffic stops, there is growing interest among distraught relatives, advocates, scholars, and lawmakers in traffic enforcement reform. These efforts have included shifts of the methods of enforcement—for example, the use of unarmed civilian units or automated enforcement devices—as well as, to a lesser degree, legalization of low-level traffic offenses. These reforms have the potential to meaningfully reduce the number of interactions between civilians and armed officers, and the violence that too often occurs, in the traffic setting.

This Article considers how the revenue-generating capacity of traffic enforcement—through traffic ticket and forfeiture revenue—interacts with race to create the potential for two key unintended consequences that undermine reformers’ goals.

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Thomas & Diamantis on Marketing Corporate Prosecutions

W. Robert (Will) Thomas and Mihailis Diamantis (University of Michigan Ross School of Business and University of Iowa - College of Law) have posted Why Corporate Prosecutors Need Better Marketing Chops on SSRN. Here is the abstract:

 

Can you name 10 corporate criminals? Bernie Madoff, Martha Steward, and Jeff Skilling don’t count – they are individuals, not businesses. How about just five? Three? It’s surprising the task should be so difficult. Corporate crime inflicts upwards of 20 times more economic damage each year than all street crime. Brand-name corporations find themselves on the wrong side of the law for everything from accounting fraud to homicide to narcotics dealing. Yet many people, including most law students and even some law professors, don’t even know that corporate criminal law exists.

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Yang on Exhaustion and Prison Litigation

Tiffany Yang (Georgetown University Law Center) has posted The Prison Pleading Trap (Boston College Law Review (Forthcoming 2023)) on SSRN. Here is the abstract:

 

The prison is an epicenter of dominance—it is where state-sanctioned abuses are most forcefully expressed and legitimized without being seen. Incarcerated people have increasingly turned to civil prisoners’ rights litigation to expose the injustices hidden behind prison walls. But rather than safeguarding incarcerated people’s access to courts, Congress enacted the Prison Litigation Reform Act to obstruct their pathways to judicial relief. A centerpiece of this effort is the Act’s exhaustion provision, which mandates proper completion of the prison grievance process before challenging any condition of prison life in federal court.

Prisons design demanding grievance pleading standards to make exhaustion more difficult for the people they confine.

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McCue on Originalism and Criminal Delegations

Michael McCue has posted Modern Times, Hidden Crimes: Criminal Lawmaking Delegations from the Founding to Today (Dartmouth Law Journal (Forthcoming 2023)) on SSRN. Here is the abstract:

Originalist proponents of the nondelegation doctrine often identify criminal lawmaking delegations as a unique area for concern. But despite this emphasis on the special nature of criminal delegations, no scholar has yet analyzed these “administrative crimes” from an originalist perspective. This Article continues the recent trend in scholarship reviewing the historical record for evidence of a nondelegation doctrine at the Founding. However, I adopt a unique approach in cabining this inquiry to the specific area of criminal law. While scholars may divide on the overarching nondelegation question, I argue that there exists evidence to support an originalist case against some types of criminal delegations.

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Resnik et al. on Time-in-Cell

Judith Resnik, Skylar Albertson, Grace Li and Jennifer Taylor (Yale University - Law School, Yale University - Law School, Yale Law School and Yale Law School) have posted Time-in-Cell: A 2021 Snapshot of Restrictive Housing Based on a Nationwide Survey of U.S. Prison Systems on SSRN. Here is the abstract:

 

This study, Time-In-Cell: A 2021 Snapshot of Restrictive Housing, analyses data from prison systems around the country and is part of a series of reports by the Correctional Leaders Association (CLA) and the Arthur Liman Center at Yale Law School, which have worked for a decade together to generate the only longitudinal, nation-wide database documenting the reported use of solitary confinement in prisons in the United States. This 2022 publication finds that prison systems report that fewer people are held in solitary confinement – defined as 22 hours or more on average a day for fifteen days or more – than in the past. This Report estimates that, as of July 2021, between 41,000 to 48,000 people were held in isolation in a U.S. prison cell for an average of 22 hours a day, for 15 days or more.

Moreover, three states reported holding no one in that form of isolation in July 2021; two other states reported fewer than ten people in solitary; and ten states reported not using solitary in any of their women’s prisons. In contrast, as documented in the study published in 2014, every jurisdiction reported using solitary confinement, and an estimated 80,000 to 100,000 people were in solitary confinement in prisons throughout the United States.

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Green et al. on AI and Public Safety Assessment

Ben Green, Yaniv Yacoby, Christopher L. Griffin and Finale Doshi-Velez (University of Michigan at Ann Arbor - Society of Fellows, Harvard University - John A. Paulson School of Engineering and Applied Sciences, University of Arizona - James E. Rogers College of Law and Harvard University - John A. Paulson School of Engineering and Applied Sciences) have posted “If it Didn't Happen, Why Would I Change My Decision?”: How Judges Respond to Counterfactual Explanations for the Public Safety Assessment on SSRN. Here is the abstract:

 

Many researchers and policymakers have expressed excitement about algorithmic explanations enabling more fair and responsible decision-making. However, recent experimental studies have found that explanations do not always improve human use of algorithmic advice. In this study, we shed light on how people interpret and respond to counterfactual explanations (CFEs) explanations that show how a model’s output would change with marginal changes to its input(s)—in the context of pretrial risk assessment instruments (PRAIs). We ran think-aloud trials with eight sitting U.S. state court judges, providing them with recommendations from a PRAI that includes CFEs. We found that the CFEs did not alter the judges’ decisions. At first, judges misinterpreted the counterfactuals as real—rather than hypothetical—changes to defendants. Once judges understood what the counterfactuals meant, they ignored them, stating their role is only to make decisions regarding the actual defendant in question. The judges also expressed a mix of reasons for ignoring or following the advice of the PRAI without CFEs. These results add to the literature detailing the unexpected ways in which people respond to algorithms and explanations. They also highlight new challenges associated with improving human-algorithm collaborations through explanations.

Mitchell & Palagashvili on Licensing and Criminal Records

Matthew D. Mitchell and Liya Palagashvili (Fraser Institute and George Mason University - Mercatus Center) have posted Economic Freedom in the Period of Invisible Punishment: Occupational and Business Licensing Barriers That Restrict Access to Work for Those with Criminal Records (Mercatus Policy Brief Series) on SSRN. Here is the abstract:

 

In the United States, once people have been convicted of a crime—or, in many cases, even arrested for a crime—those people are marked for life in a way that allows states to deny them the right to earn a living in the profession of their choosing. In this short brief, we discuss the US incarceration rate, the collateral consequences to economic freedom as a result of conviction and arrest, and potential avenues for reform.

Leigh on Comparative Incarceration Rates

Andrew Leigh (Australian House of Representatives Parliament House) has posted Estimating Long-Run Incarceration Rates for Australia, Canada, England & Wales, New Zealand and the United States (IZA Discussion Paper No. 13024) on SSRN. Here is the abstract:

 

Compiling data from dozens of archival sources, I compile the most extensive series to date of the long-run imprisonment rate for five English-speaking nations: Australia, Canada, England and Wales, New Zealand and the United States. These series are constructed as a share of adults rather than the entire population, and I discuss why the latter can be misleading. In the late-nineteenth century, Australia had the highest incarceration rate of these nations. Today, the United States has the highest rate. With the exception of Canada, incarceration rates have risen markedly since the mid-1980s. These new series are made available in full, to allow other researchers to explore the consequences and causes of incarceration.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Sex Exceptionalism in Criminal Law Aya Gruber University of Colorado Law School Date Posted: 27 Jul 2022	361
2.	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	186
3.	First Amendment Limits on State Laws Targeting Election Misinformation David S. Ardia and Evan Ringel University of North Carolina (UNC) at Chapel Hill - School of Law and University of North Carolina - Chapel Hill, Hussman School of Journalism and Media Date Posted: 02 Sep 2022 [new to top ten]	179
4.	Is Criminal Law Unlawful? Paul A. Gowder Northwestern University - Pritzker School of Law Date Posted: 14 Sep 2022 [new to top ten]	150
5.	Vagueness and Federal-State Relations Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 06 Aug 2022 [5th last week]	143
6.	The Progressive Love Affair with the Carceral State (Book Review) Kate Levine Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 01 Sep 2022 [4th last week]	132
7.	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	107
8.	The Illusive Motive Requirement In Canada's Terrorism Offences: Defining and Distinguishing Ideology, Religion, and Politics Michael Nesbitt, Leah West and Amarnath Amarasingam University of Calgary, Faculty of Law, Carleton University - Norman Paterson School of International Affairs and Queen's University Date Posted: 04 Aug 2022	94
9.	Countermajoritarian Criminal Law Michael L. Smith University of Idaho College of Law Date Posted: 06 Aug 2022	89
10.	Is the Principle of Desert Unprincipled in Practice? Marah Stith McLeod Notre Dame Law School Date Posted: 18 Aug 2022 [new to top ten]	73

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	356
2.	The Coherence of Prison Law Sharon Dolovich University of California, Los Angeles - School of Law Date Posted: 30 Aug 2022 [new to top ten]	158
3.	Fourteenth Amendment Confrontation Evan D. Bernick Northern Illinois University - College of Law Date Posted: 06 Aug 2022 [2nd last week]	155
4.	The Progressive Love Affair with the Carceral State (Book Review) Kate Levine Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 01 Sep 2022 [4th last week]	132
5.	Using Consent to Expand Tribal Court Criminal Jurisdiction Grant Christensen Stetson University - College of Law Date Posted: 14 Sep 2022 [new to top ten]	131
6.	Theorizing Corroboration Maggie Wittlin Fordham University School of Law Date Posted: 30 Jul 2022 [5th last week]	98
7.	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 [8th last week]	97
8.	McCleskey Accused: Justice Powell and the Moral Price of Institutional Pride Josh Bowers University of Virginia School of Law Date Posted: 22 Jul 2022 [7th last week]	96
9.	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 [6th last week]	95
10.	How Accurate are Rebuttable Presumptions of Pretrial Dangerousness? A Natural Experiment from New Mexico Cristopher Moore, Elise Ferguson and Paul Guerin Santa Fe Institute, affiliation not provided to SSRN and affiliation not provided to SSRN Date Posted: 09 Jul 2022 [9th last week]	80

Bender on Comparative Truth and Fairness

Philip Maximilian Bender (Max Planck Institute for Tax Law and Public Finance) has posted Same Ends, Different Means: Truth and Fairness in Criminal Procedure of the United States and Germany on SSRN. Here is the abstract:

 

An important part of the academic contributions on criminal procedure tries to make sense of the differences between US and German criminal procedure in terms of the ends pursued. According to these contributions, US criminal procedure is oriented towards fairness and the German system aims at truth (ends-based narrative). However, at a closer look, both countries pursue truth as the overarching goal of criminal procedure and both countries try to obtain it through procedural tools. Their respective criminal justice systems do not differ so much in terms of the ends pursued but rather in terms of the concrete means applied (means-based narrative). This article wants to provide support for this means-based narrative by examining the legal origins of both systems, the presence or absence of jury trials, plea bargaining, exclusionary rules, especially the fruit of the poisonous tree doctrine, and rules concerning the impeachment of witnesses. I will first interpret each of these points according to the ends-based narrative, associating the US adversarial model with fairness and the German inquisitorial system with truth. Then, I will show that just as we can interpret US rules in terms of truth, we can make sense of the German legal institutions in terms of fairness. In a brief conclusion, I will suggest that the means-based analysis should focus on the different design of legal norms in both systems.

Gowder on Unlawful Criminal Law

Paul A. Gowder (Northwestern University - Pritzker School of Law) has posted Is Criminal Law Unlawful? (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract:

 

A legal theorist reading contemporary criminal justice scholarship is confronted with a troubling sense of dissonance. Foundational to modern accounts of the concept of law are rules, and the chief modality of law’s operation in ordinary peoples’ lives is said to be in enforcing those (primary) rules. Normative theories by philosophers of law typically deploy this rule- oriented character as a key virtue of legal systems, whether in Fullerian theories of the moral value of law itself in terms of their facilitation of autonomous self-application of rules, or in theories of the rule of law according to which one of the key criteria of good legal systems is that they only coerce individuals pursuant to rules.

Yet criminal justice scholars have known for decades that rule-enforcement is at best incidental to vast swathes of criminal justice. Even before the advent of “broken windows” policing, a large portion of police work was focused on coercively organizing public space, with minimal regard to the rules of substantive law.

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Christensen on Consent to Tribal Court Jurisdiction

Grant Christensen (Stetson University - College of Law) has posted Using Consent to Expand Tribal Court Criminal Jurisdiction (California Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In June of 2022 the Supreme Court reversed two-hundred years of precedent and held in a 5-4 opinion that states have concurrent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian country. Oklahoma v. Castro-Huerta. In conducting the preemption analysis Justice Kavanaugh’s majority opinion reasoned that while states have a strong interest in prosecuting crimes in Indian country in order to keep the community safe, tribes had functionally no interest because they generally lack criminal jurisdiction over non-Indians. The court then reasoned that the lack of a tribal interest could not preempt the state interest. This article suggests, despite the general prohibition on tribes asserting criminal jurisdiction over non-Indians that was discovered by the Supreme Court in 1978’s Oliphant opinion, tribes can assert criminal jurisdiction over non-Indians who consent to the jurisdiction in tribal court. The argument extends to both affirmative and implied consent and draws its authority from both pre-Oliphant scholarship and precedent as well as from recent development by the Court, Congress, and dicta from the Ninth Circuit. If tribes are able to regularly assert some criminal jurisdiction over non-Indians, then when lower courts apply Castro-Huerta in the future there will be a strong tribal interest to preempt state criminal jurisdiction in Indian country.

Reyes on AI and Criminal Justice

Carla Reyes (Southern Methodist University - Dedman School of Law) has posted Emerging Technology’s Language Wars: AI and Criminal Justice (Journal of Law & Innovation (2022 Forthcoming)) on SSRN. Here is the abstract:

 

Work at the intersection of Artificial Intelligence systems (AI systems) and criminal justice suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, researchers, law-makers, software developers, engineers, judges, and the public all talk past each other, using the same words, but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates. Doing so offers a tool for reconciling specific linguistic ambiguities before they are embedded in law and ensures more effective communication of the technical pre-requisites for AI systems that, by design, seek to achieve their intended purpose while also upholding core democratic values in the criminal justice system.