CrimProf Blog

Levy on Responsibility Skepticism

Ken Levy (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Let's Not Do Responsibility Skepticism (Forthcoming, Journal of Applied Philosophy (expected to be in Vol. 39, Issue 5, Nov. 2022)) on SSRN. Here is the abstract:

 

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal non-responsibility excuse. Second, a universal non-responsibility excuse would diminish some of our most deeply held values, further dehumanize criminals, exacerbate mass incarceration, and cause an even greater number of innocent people (non-wrongdoers) to be punished. Third, while Saul Smilansky’s “illusionist” response to responsibility skeptics—that even if responsibility skepticism is correct, society should maintain a responsibility-realist/retributivist criminal justice system—is generally compelling, it would not work if a majority of society were to convert, theoretically and psychologically, to responsibility skepticism. In this (highly improbable) scenario, and only in this (highly improbable) scenario, the criminal justice system would need to be reformed in such a way that it aligned with the majority’s responsibility-skeptical beliefs and attitudes.

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Slobogin on Virtual Searches

Christopher Slobogin (Vanderbilt University - Law School) has posted Virtual Searches: Regulating the Covert World of Technological Policing (New York University Press 2022) on SSRN. Here is the abstract:

 

A host of technologies—among them digital cameras, drones, facial recognition devices, night-vision binoculars, automated license plate readers, GPS, geofencing, DNA matching, datamining, and artificial intelligence—have enabled police to carry out much of their work without leaving the office or squad car, in ways that do not easily fit the traditional physical search and seizure model envisioned by the framers of the Constitution. Virtual Searches develops a useful typology for sorting through this bewildering array of old, new, and soon-to-arrive policing techniques. It then lays out a framework for regulating their use that expands the Fourth Amendment’s privacy protections without blindly imposing its warrant requirement, and that prioritizes democratic over judicial policymaking. The coherent regulatory regime developed in Virtual Searches ensures that police are held accountable for their use of technology without denying them the increased efficiency it provides in their efforts to protect the public. Whether policing agencies are pursuing an identified suspect, constructing profiles of likely perpetrators, trying to find matches with crime scene evidence, collecting data to help with these tasks, or using private companies to do so, Virtual Searches provides a template for ensuring their actions are constitutionally legitimate and responsive to the polity.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Black Guilt, White Guilt at the International Criminal Court Rachel López Drexel University Thomas R. Kline School of Law Date Posted: 06 Oct 2022 [2nd last week]	288
2.	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 [3rd last week]	271
3.	Is Criminal Law Unlawful? Paul A. Gowder Northwestern University - Pritzker School of Law Date Posted: 14 Sep 2022 [5th last week]	197
4.	Promise or Peril?: The Political Path of Prison Abolition in America Rachel E. Barkow New York University School of Law Date Posted: 03 Oct 2022 [7th last week]	165
5.	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 [6th last week]	143
6.	Agree to Act Together: An Exposition of the Contemporary Laws on Conspiracy Under Ghanaian Criminal Jurisprudence Charles Boakye University of Ghana School of Law Date Posted: 27 Sep 2022 [new to top ten]	118
7.	The Bribery Double Standard: Leveraging the Foreign-Domestic Divide Anna Mance and Dinsha Mistree Southern Methodist University - Dedman School of Law and Stanford Law School Date Posted: 30 Aug 2022 [8th last week]	100
8.	A Human Rights-Based Critical Discourse on the Abolition of Child Sexual Abuse Manotar Tampubolon Christian University of Indonesia (UKI) Date Posted: 20 Oct 2022 [new to top ten]	75
9.	Legitimate Divergence between Moral and Criminal Blame Alex F. Sarch University of Surrey School of Law Date Posted: 05 Aug 2022	73
10.	Thinking Outside the Dox: The First Amendment and the Right to Disclose Personal Information Frank LoMonte and Paola Fiku University of Florida Levin College of Law and Brechner Center for Freedom of Information Date Posted: 22 Sep 2022 [new to top ten]

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers:

Tuesday

• Cruz v. Arizona: Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1 (g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.
• Jones v. Hendrix: Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

Wednesday

• Bittner v. U.S.: Whether a “violation” under the Bank Secrecy Act is the failure to file an annual Report of Foreign Bank and Financial Accounts (no matter the number of foreign accounts), or whether there is a separate violation for each individual account that was not properly reported.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Problematic Structure of Indigent Defense Delivery Eve Brensike Primus University of Michigan Law School Date Posted: 04 Oct 2022	225
2.	The Coherence of Prison Law Sharon Dolovich University of California, Los Angeles - School of Law Date Posted: 30 Aug 2022	177
3.	'Take the Motherless Children off the Street': Fetal Alcohol Syndrome and the Criminal Justice System Michael L. Perlin and Heather Cucolo New York Law School and New York Law School Date Posted: 12 Sep 2022	176
4.	Using Consent to Expand Tribal Court Criminal Jurisdiction Grant Christensen Stetson University - College of Law Date Posted: 14 Sep 2022	162
5.	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	143
6.	Dobbs Online: Digital Rights as Abortion Rights Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 22 Sep 2022 [8th last week]	102
7.	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	94
8.	Telephone Pole Cameras Under Fourth Amendment Law Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 06 Oct 2022 [new to top ten]	80
9.	Remedying Unreasonable Delay Colton Fehr Thompson Rivers University, Faculty of Law Date Posted: 12 Sep 2022 [10th last week]	75
10.	The Empty Promise of the Fourth Amendment in the Family Regulation System Anna Arons NYU Law Date Posted: 30 Aug 2022 [9th last week]	72

Duho et al. on COVID and Organized Crime in Ghana

King Carl Tornam Duho, Stephen Asare Abankwah, Grace Kathure Mugo, Mohammed Atampuri, Vincent Seny Duho and Pius Adjei-Mensah (Dataking Consulting, Dataking Consulting, Independent, Dataking Consulting, Dataking Consulting and Independent) have posted Impact of Covid-19 on Organised Crime in Ghana and Insights for a Post-Pandemic Context on SSRN. Here is the abstract:

 

Organised crime has undergone several mutations in the wake of the COVID-19 pandemic. The introduction of lockdowns and movement restrictions have significantly disrupted the entire business landscape, necessitating swift adaptability to the changing times. For organised criminal groups, this means shifting market focus and re-routing illicit networks to suit the context of the crisis. This has exposed countries to an avalanche of organised criminal activities. In the post-pandemic context, criminal groups are more likely to take advantage of, among others, prolonged economic crisis, rising unemployment levels, and changes in consumer demand and behaviour. Noted for its sustained years of democracy, Ghana is highly acclaimed for its relative peace and stability. Nonetheless, there are growing concerns about serious and organized crime and to some extent deepening issues of terrorism.

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Dempsey on Coercion, Consent, and Time

Michelle Madden Dempsey (Villanova University School of Law) has posted Coercion, Consent, and Time (Ethics 2021 (University of Chicago Press)) on SSRN. Here is the abstract:

 

This article sets out a framework for distinguishing three kinds of norms governing past sexual (mis)conduct and our responses to it: wrongfulness norms, excusability norms, and accountability norms. The framework provides conceptual tools for making sense of (and understanding the limits of) three distinct responses commonly offered by those accused of past sexual misconduct: “But that used to be okay!” “But everybody used to think that was okay!” and “But that was so long ago!”

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Reznik on Hobbes, Self-Defense, and the Second Amendment

Rafi Reznik has posted On the Place of Self-Defense in Public Life: A Hobbesian Critique of the Supreme Court’s Second Amendment on SSRN. Here is the abstract:

 

Contemporary Second Amendment law, which originated with the famous Heller decision (2008) and reached a new peak with Bruen (2022), relies on an implicit political theory. This Article uncovers and critiques that theory. I argue that the Supreme Court’s Second Amendment jurisprudence positions inter-personal self-defense, and more generally individual response to crime, at the heart of the meaning of American citizenship. The paradigmatic citizen for whom state institutions should be designed is a self-defender, because, per the Court’s interpretive methodology, this is what the American people want. This line of cases thus attempts one of the most challenging feats of modern political philosophy: squaring popular sovereignty with natural rights, and particularly the right to use violence in self-defense. Curiously, however, the philosopher who first and most influentially established how self-defense and popular sovereignty bear on each other, Thomas Hobbes, is absent from Second Amendment analyses. The Article explains why this absence is unfortunate and then rectifies it.

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Wexler on Skewed Access to the Global Clous

Rebecca Wexler (University of California, Berkeley, School of Law) has posted The Global Cloud, the Criminally Accused, and Executive Versus Judicial Compulsory Process Powers (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

 

U.S. policymakers’ responses to the global data privacy movement are creating a deep structural unfairness in the criminal legal system. In an era of cloud computing, when data about communications and activities occurring anywhere in the world can be stored on servers located anywhere else, access to such data can make the difference between convictions and acquittals. At the same time, a wave of new global data privacy laws risks cutting off cross-border access to digital evidence in criminal investigations. Recognizing the threat to law enforcement interests, U.S. policymakers enacted the CLOUD Act of 2018 to create special procedures for law enforcement to circumvent foreign data privacy laws and access cross-border evidence anyway. Yet no one is creating similar procedures for criminal defense investigators.

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Barclay on Common Law Defenses and Human Trafficking Victims

Grant Barclay (University of Edinburgh) has posted Archaic Solutions for Modern Problems: Do Common Law Defences Offer Enough Protection to Victims of Human Trafficking? on SSRN. Here is the abstract:

 

This article provides a doctrinal analysis of the coerion defence in Scots law in light of the recent High Court of Justiciary decision - Van Phan v HM Advocate [2018] HCJAC 7 - where the defence was raised in the context of human trafficking. The article critically evaluates Lord Carloway's statement that, in addition to the Lord Advocate's guidelines to prosecutors, the common law defences of coercion and necessity would provide sufficient safeguards against charges or conviction for offences which the accused has been compelled to commit as a direct consequence of being subject to trafficking. The article notes the extremely limited circumstances under which these common law defences may be pled and indeed will succeed in Scots law, focusing on the law's characterisation of coercive threats as being single instances of violence, rather than the kind of prolonged and multi-faceted abuse that victims of trafficking endure. The article concludes by considering the English statutory defence under s45(1) of the Modern Slavery Act 2015 as a possible model for reform, providing additional protection to some of the most vulnerable persons who enter the criminal justice system.

Albert on Section 230 and the Police State

Kendra Albert has posted Accidental Abolition? Exploring Section 230 as Non-Reformist Reform (Feminist Cyberlaw, Forthcoming) on SSRN. Here is the abstract:

Much ink has been spilled in defense of or against Section 230. But most scholars do not cite Section 230 as an example of abolition of the police state or prison industrial complex, despite the fact that Section 230 may represent the largest single carveout of people and entities from state criminal liability in United States history.

Abolition feminism, a critique that comes out of both work against the prison industrial complex and feminist communities of color advocating against using the criminal legal system to address interpersonal violence, has much to teach us about how to think about Section 230. In this essay, I use the work of abolitionist feminists to explore something different: if viewed through an abolitionist lens, what can we learn about the possibilities that 230 creates and the failure of many platforms and people to fully perform the imagining work necessary to make use of them?

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Margolis on Reforming Police Unions

Carly Margolis has posted Targeting Police Unions, Rethinking Reform (N.Y.U. Review of Law and Social Change) on SSRN. Here is the abstract:

Police unions are a powerful obstacle to reform and abolition movements alike. This article tracks the (re)emergence of a political strategy targeting police unions as a site of police reform and abolition amid the summer 2020 uprising. It takes Washington, D.C.’s Defund MPD (Metropolitan Police Department) movement as a case study on the successful targeting of police unions. The D.C. Defund movement imposed radical demands, achieved measurable restrictions on police union power, and, in doing so, revealed new possibilities for the role of police union contracts in divestment and community control. The D.C. Defund movement influenced the D.C. Council to pass legislation restricting the bargaining power of the D.C. Police Union and itself leveraged the police union contract as a site of transformation. By closely analyzing the course of the D.C. Defund movement’s campaign against a police union, this article elucidates the larger challenges posed by police unions and explores strategies for addressing them that have been previously overlooked.

Miceli on Expressive Law and Escalating Penalties

Thomas J. Miceli (University of Connecticut - Department of Economics) has posted Expressive Law and Escalating Penalties: Accounting for the Educational Function of Punishment on SSRN. Here is the abstract:

 

The pervasiveness of law enforcement schemes that prescribe harsher penalties for repeat offenders continues to challenge scholars who seek an economic explanation for criminal justice policies. The current paper formalizes an explanation suggested by Dana (2001); namely, that escalating penalties promote the role of the law in educating people about wrongful behavior—the so-called “expressive function” of law. The analysis shows that an escalating structure that imposes a lenient sanction on all first-timers and a harsh sanction on repeaters represents a compromise solution that is (second best) optimal if the fraction of unknowing offenders in the population of potential offenders (as opposed to rational calculators) is sufficiently large.

Efrat & Richemond-Barak on The Anti-Death Penalty Norm

Asif Efrat and Daphné Richemond-Barak (Interdisciplinary Center (IDC) Herzliyah and Interdisciplinary Center (IDC Herzliya) - Lauder School of Government, Diplomacy and Strategy) have posted How Alive is the Anti-Death Penalty Norm? Evidence from the British and French Treatment of ISIS Foreign Fighters (Journal of Global Security Studies, Forthcoming) on SSRN. Here is the abstract:

 

This article enhances our understanding of international norms by developing a set of indicators to measure norm robustness at the domestic level. We apply these indicators to assess the robustness of the prohibition on the death penalty: a well-established international norm that terrorism-related cases have put to the test. In the UK, the government agreed to share information with the United States, possibly leading to the imposition of the death penalty on two ISIS foreign fighters of UK origin. France facilitated the trials of French ISIS fighters in Iraq, where they were sentenced to death. While the UK government, under public and judicial pressure, reversed its decision to cooperate with U.S. authorities, the French government failed to acknowledge its violation of the death-penalty ban. We conclude that the anti-death penalty norm is more robust in the UK than in France. This case demonstrates how established democracies might break international human-rights norms, and it reveals the nuances of the norm-decaying process.

Keyes on Transitional Provisions

John Mark Keyes (University of Ottawa - Faculty of Law) has posted Transitional Provisions: A Cautionary Tale on SSRN. Here is the abstract:

 

This article looks at an amendment to the Canadian Criminal Code dealing with the selection of juries and a recent decision of the Supreme Court of Canada considering its application in proceedings instituted before the amendment came into force. The article draws attention to the interpretive difficulties surrounding the temporal application of legislation and the importance of avoiding these difficulties with clearly drafted transitional provisions.

Garvey on The Casassa Case

Liam Garvey has posted The Trial of Victor Casassa: Murder or Manslaughter? on SSRN. Here is the abstract:

People v. Cassasa is part of the criminal-law canon. The case is used to illustrate the differences between the way in which the common law and the Model Penal Code define "voluntary manslaughter." Based on the facts recited in the opinion, Casassa comes off more or less as just another possessive and jealous ex who, in this case, killed the victim when she refused some booze offered as a gift. But was that all there was to it? Perhaps. But in any case, this short essay, based on the record on appeal, provides a more complete description of Victor Casassa and what might have been his state of mind at the time of the killing.

Noel & Conklin on Crime by Professionals and the Marijuana Industry

Christine Noel and Michael Conklin (Colorado Mesa University and Angelo State University - Business Law) have posted Choosing Industries Wisely: A Case of Professionals Toking up the Wrong Tree (36 J. BUS. CASES & APPLICATIONS ___ (forthcoming 2022)) on SSRN. Here is the abstract:

 

The purpose of this case is to provide students with a learning opportunity to think critically about facts as they relate to a legal framework within the marijuana industry. The students should use logic and reasoning to identify the conditions present in each scenario and determine if the conditions are sufficient to meet the requirements based on the legal definitions. It is suggested that this case be used in forensic accounting and fraud education, legal education, and law enforcement investigations training. This is a fictitious case. All scenario information contained herein was constructed by the authors. Any similarity contained herein to actual persons, businesses, events, etc. is purely coincidental.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Cannabis Prohibition - A Crime against Humanity Dale S. Mantey, LaTrice Montgomery and Steven H. Kelder University of Texas School of Public Health, University of Cincinnati - College of Medicine and University of Texas at Houston - Department of Epidemiology, Human Genetics, and Environment Sciences Date Posted: 24 Aug 2022 [3rd last week]	278
2.	Black Guilt, White Guilt at the International Criminal Court Rachel López Drexel University Thomas R. Kline School of Law Date Posted: 06 Oct 2022	272
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 [1st last week]	264
4.	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	202
5.	Is Criminal Law Unlawful? Paul A. Gowder Northwestern University - Pritzker School of Law Date Posted: 14 Sep 2022	196
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	139
7.	Promise or Peril?: The Political Path of Prison Abolition in America Rachel E. Barkow New York University School of Law Date Posted: 03 Oct 2022	139
8.	The Bribery Double Standard: Leveraging the Foreign-Domestic Divide Anna Mance and Dinsha Mistree Southern Methodist University - Dedman School of Law and Stanford Law School Date Posted: 30 Aug 2022 [9th last week]	100
9.	Legitimate Divergence between Moral and Criminal Blame Alex F. Sarch University of Surrey School of Law Date Posted: 05 Aug 2022 [new to top ten]	72
10.	The Moral Foundation of Criminal Defences and the Limits of Constitutional Law Colton Fehr Thompson Rivers University, Faculty of Law Date Posted: 12 Sep 2022 [new to top ten]	63

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Problematic Structure of Indigent Defense Delivery Eve Brensike Primus University of Michigan Law School Date Posted: 04 Oct 2022	214
2.	The Coherence of Prison Law Sharon Dolovich University of California, Los Angeles - School of Law Date Posted: 30 Aug 2022	175
3.	'Take the Motherless Children off the Street': Fetal Alcohol Syndrome and the Criminal Justice System Michael L. Perlin and Heather Cucolo New York Law School and New York Law School Date Posted: 12 Sep 2022	169
4.	Using Consent to Expand Tribal Court Criminal Jurisdiction Grant Christensen Stetson University - College of Law Date Posted: 14 Sep 2022	160
5.	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	139
6.	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	113
7.	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	93
8.	Dobbs Online: Digital Rights as Abortion Rights Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 22 Sep 2022	81
9.	The Empty Promise of the Fourth Amendment in the Family Regulation System Anna Arons NYU Law Date Posted: 30 Aug 2022 [10th last week]	64
10.	Remedying Unreasonable Delay Colton Fehr Thompson Rivers University, Faculty of Law Date Posted: 12 Sep 2022 [9th last week]	63

Nelson on Corporate Criminal ESG

J.S. Nelson (Harvard Law School) has posted Corporate Criminal ESG on SSRN. Here is the abstract:

 

As social norms around climate change shift rapidly, and the U.S. Supreme Court requires federal regulation to retreat, regulation at the state and local levels fracture into increasingly aggressive, and often diametrically opposed, enforcement. Meanwhile, business representations regarding environmental, social, and corporate governance (ESG) initiatives are being policed by traditional charges of fraud that are civil, and, increasingly, criminal. These tensions create massive uncertainties for business. On a global issue like climate change, U.S. businesses, and the people who run them, need political and regulatory stability.

This Article makes three important contributions. First, it demonstrates how out-of-step with the rest of the world U.S. federal courts are, and how the country’s failure to adopt ESG standards in line with international developments hurts U.S. businesses.

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