CrimProf Blog

Garrett & Rudin on Glass Box AI

Brandon L. Garrett and Cynthia Rudin (Duke University School of Law and Duke University - Pratt School of Engineering) have posted Glass Box Artificial Intelligence in Criminal Justice on SSRN. Here is the abstract:

 

As we embrace data-driven technologies across a wide range of human activities, policymakers and researchers increasingly sound alarms regarding the dangers posed by “black box” uses of artificial intelligence (AI) to society, democracy, and individual rights. Such models are either too complex for people to understand or they are designed so that their functioning is inaccessible. This lack of transparency can have harmful consequences for the people affected. One central area of concern has been the criminal justice system, in which life, liberty, and public safety can be at stake. Judges have struggled with government claims that AI, such as that used in DNA mixture interpretation, risk assessments, facial recognition, and predictive policing, should remain a black box that is not disclosed to the defense and in court. Both the champions and critics of AI have argued we face a central trade-off: black box AI sacrifices interpretability for predictive accuracy. We write to counter this black box myth. We describe a body of computer science research showing “glass box” AI that is interpretable can be more accurate.

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"Court green-lights execution of Missouri man who presented evidence of racist prosecutor"

Amy Howe has this post at ScotusBlog, noting dissents by Justices Sotomayor and Jackson. In part:

Last month, a state trial court appointed a special prosecutor to investigate the original prosecutor’s alleged racism. The special prosecutor found “clear” evidence that the original prosecutor “consistently made race-influenced decisions in his handling of capital homicides.” Based on those findings, the special prosecutor filed a motion to invalidate Johnson’s death sentence.

Calling Johnson’s new stay request a “transparent refusal to accept moral responsibility for his crimes,” Missouri urged the court to allow Johnson’s execution to go ahead as scheduled. The state dismissed Johnson’s claims of racial bias as “completely baseless.” But in any event, it continued, a Missouri Supreme Court decision denying Johnson’s plea to stay his execution rested on its conclusion that Johnson’s claims were not covered by a new state law that allows prosecutors to make post-conviction motions on behalf of inmates. Therefore, the state concluded, the Missouri Supreme Court’s decision was based on an independent state-law ground, which bars the U.S. Supreme Court from reviewing it.

"Study: More law enforcement agencies turning to ‘non-police responders’ in mental-health crises"

From the San Diego Union-Tribune:

The report was published last week by the Brennan Center for Justice, a New York-based think tank that focuses on criminal justice, voting rights and other public policy matters.

The analysis found that nearly 40 percent of the country’s 50 largest law enforcement agencies adopted programs between January 2020 and July 2022 that require sending behavioral health specialists or trained community members to some emergencies.

Another 30 percent of agencies created programs that either paired specialists — like paramedics or therapists — with police or sent them to incidents in lieu of officers.

One in five large departments also limited when officers could make traffic and pedestrian stops.

Freiberg & Roberts on Sentencing Commissions and Guidelines

Arie Freiberg and Julian V. Roberts (Monash University - Faculty of Law and University of Oxford - Centre for Criminology) have posted Sentencing Commissions and Guidelines: A Case Study in Policy Transfer (Criminal Law Forum 2022) on SSRN. Here is the abstract:

 

Over the past few decades, the traditional, discretionary approach to sentencing has been progressively replaced by structured regimes often administered by sentencing commissions or councils. Sentencing guidelines of one kind or another have proliferated across the common law world and constitute the most significant development in sentencing in a century. This article examines the creation and subsequent proliferation of sentencing commissions since the establishment of the first commissions in Minnesota and Pennsylvania in 1978.

The article explores the process by which the idea of a sentencing commission and its guidelines has spread to other jurisdictions. This process, referred to as policy transfer, diffusion, transplantation, convergence, translation or policy learning, modelling or borrowing, can provide insight into why a policy innovation in one jurisdiction is emulated or adapted in another, and the means by which such innovations are communicated over time and between jurisdictions.

"Where are guns allowed in New York now? An updated look following Supreme Court ruling."

At Gothamist, via ScotusBlog, including an interesting catalogue of pending challenges:

Right now, guns are still banned throughout the state in just about all public places — except for places of worship in some circumstances. But as these cases move through the courts, the rules about where people can bring guns and what requirements gun owners must meet to obtain a carry permit remain in constant flux. Gothamist has created a case tracker to keep New Yorkers up to date on where they can expect permit holders to be carrying guns, as well as what requirements still stand for concealed carry permit applications. It will be updated regularly.

"How overzealous prosecution and racial bias result in unjust death sentences in Missouri"

From KCUR (Kansas City NPR), via NACDL's news update:

According to the nonprofit Death Penalty Information Center, since 1973 at least 190 people who were sentenced to death in the U.S. have been exonerated.

The center states, “Given the fallibility of human judgment, there has always been the danger that an execution could result in the killing of an innocent person.”

One Missouri case seems to be a textbook example of a perilously imperfect system where a defendant’s race and socioeconomic status, coupled with prosecutors all too eager to get a conviction, led to an unjust death sentence.

Jarecki on Perpetual Surveillance

John Jarecki has posted Privacy in the Panopticon: The Fourth Amendment Case Against Perpetual Surveillance (Vol. 48. No 1. University of Dayton Law Review 2022) on SSRN. Here is the abstract:

This article explores the need for greater Fourth Amendment protections against the practice of long term pole camera surveillance. Section II offers a history of the Fourth Amendment in the context of surveillance and reviews the development and pitfalls of the famous Katz test. It also recounts how courts have fractured in their efforts to apply Katz to cases involving lengthy video monitoring and considers the oft-cited Mosaic Theory in more detail. Section III argues that the United States Supreme Court, as the final arbiter of disputes among the circuit courts, is in the best position to reboot the now wearied Katz test to preserve privacy rights in the modern landscape and argues that Katz should be replaced with a test better suited to contend with the challenges of perpetual video surveillance in the modern age.

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	319
2.	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	255
3.	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	227
4.	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	197
5.	Towards Collective Safety: Transformative Methodologies Sarah T. Hamid and Rachel Kuo Independent and The University of Illinois at Urbana-Champaign Date Posted: 03 Nov 2022	162
6.	The Immigration Implications of Presidential Pot Pardons Jason A. Cade University of Georgia School of Law Date Posted: 01 Nov 2022	107
7.	Last Among Equals: Women’s Equality, R v Brown, and the Extreme Intoxication Defence Kerri Froc and Elizabeth A. Sheehy University of New Brunswick Faculty of Law and University of Ottawa - Common Law Section Date Posted: 27 Sep 2022	100
8.	Accidental Abolition? Exploring Section 230 as Non-Reformist Reform Kendra Albert Harvard Law School Date Posted: 17 Oct 2022	92
9.	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]	85
10.	A Behavioral Ethics Perspective on the Theory of Criminal Law & Punishment Hadar Dancig-Rosenberg, Hadar Dancig-Rosenberg and Yuval Feldman Bar-Ilan UniversityUC Berkeley School of Law and Bar-Ilan University - Faculty of Law Date Posted: 21 Sep 2022 [new to top ten]	70

Next week's criminal law/procedure arguments

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

• Ciminelli v. U.S.: Whether the U.S. Court of Appeals for the 2nd Circuit’s “right to control” theory of fraud — which treats the deprivation of complete and accurate information bearing on a person’s economic decision as a species of property fraud — states a valid basis for liability under the federal wire fraud statute.
• Percoco v. U.S.: Whether a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owes a fiduciary duty to the general public such that he can be convicted of honest-services fraud.

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	247
2.	The Initial Collateral Consequences of Pretrial Detention: Employment, Residential Stability, and Family Relationships Tiffany Bergin, Rene Ropac, Imani Randolph and Hannah Joseph NYC Criminal Justice Agency, NYC Criminal Justice Agency, NYC Criminal Justice Agency and NYC Criminal Justice Agency Date Posted: 06 Oct 2022 [5th last week]	152
3.	'Critical Legal Studies, Again?' 'Again and Again!' Evan D. Bernick Northern Illinois University - College of Law Date Posted: 27 Sep 2022 [4th last week]	148
4.	Telephone Pole Cameras Under Fourth Amendment Law Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 06 Oct 2022 [7th last week]	110
5.	Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release After Haymond Nancy J. King Vanderbilt University - Law School Date Posted: 04 Nov 2022 [8th last week]	97
6.	El Marco Internacional para la Excelencia de las Cortes y Justicia Terapéutica: Creando excelentes cortes y mejorando el bienestar (The International Framework for Court Excellence and Therapeutic Jurisprudence: Creating Excellent Courts and Enhancing Wellbeing) Elizabeth Richardson, Pauline Spencer and David B. Wexler Monash University - Faculty of Law, Magistrates' Court of Victoria and University of Puerto Rico - School of Law Date Posted: 30 Sep 2022 [9th last week]	90
7.	Race and Wrongful Convictions in the United States 2022 Samuel R. Gross, Maurice Possley, Ken Otterbourg, Klara Stephens, Jessica Paredes and Barbara O'Brien University of Michigan Law School, University of California Irvine, Independent, Independent, Independent and Michigan State University - College of Law Date Posted: 25 Oct 2022 [10th last week]	87
8.	The Efficiency Mindset and Mass Incarceration Thea Johnson Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 21 Oct 2022 [new to top ten]	63
9.	Put the Juvenile Back in Juvenile Court Erin Fitzgerald New England Law | Boston Date Posted: 02 Sep 2022 [new to top ten]	61
10.	Time to Heal: Trauma's Impact on Rape & Sexual Assault Statutes of Limitations Fredrick E. Vars University of Alabama - School of Law Date Posted: 26 Sep 2022 [new to top ten]	61

 

"Chinese Court Sentences Canadian Singer to Prison for Rape"

From The New York Times:

Kris Wu, a Canadian Chinese pop singer who was once one of China’s most popular entertainers, was found guilty of rape by a Beijing court and sentenced to 13 years in prison on Friday, becoming one of the most prominent figures in the country to be punished for #MeToo allegations.

. . .

In its statement, the court said he would also be deported. Officials from the Canadian embassy in China attended the sentencing hearing, the court said. Mr. Wu, who had denied the allegations when they first surfaced, has the right to appeal his conviction and 13-year prison term. Mr. Wu’s lawyer could not be immediately reached.

In a separate announcement, the Chinese government said it would seek 600 million yuan, or about $83 million, from Mr. Wu for tax evasion, overdue fees, and fines, according to Xinhua, a state-owned news agency.

"What to Know Now That the N.Y.P.D. Is on Amazon’s Neighborhood Watch App"

From The New York Times:

The New York Police Department, which already relies on a high-tech toolbox that includes facial recognition software, drones and mobile X-ray vans, has joined Neighbors, a public neighborhood watch platform owned by Amazon’s Ring where video doorbell owners can post clips, and where precincts can enlist the help of the city’s residents in their investigations.

. . . 

But the vast growth of the initiative — over 2,000 of the nation’s public safety agencies have signed on, including in Los Angeles and Chicago — has alarmed digital rights and privacy activists who say that the platform could lead to over surveillance by the police, a burden historically borne by people of color. 

"High court primed to temper political bribery convictions in case with ex-Cuomo aide"

From Courthouse News Service, via NACDL's news update:

Two bribery schemes are at the heart of those convictions. In 2012, when Percoco was serving as Andrew Cuomo’s executive deputy secretary, he got his wife a job with a state lobbyist Todd Howe. Howe headed up an energy company seeking a contract with the state. After hiring Percoco’s wife as an education consultant where she worked a few hours a week for $90,000 a year, Percoco helped Howe’s energy company obtain an energy contract for the state. 

There is no dispute that Percoco was employed by the state in that matter, but his other convictions fall under a much murkier timeline. In 2014, Percoco left Cuomo’s office for about eight months to manage the governor's reelection campaign. During this time, Percoco is alleged to have helped a real estate developer avoid signing a costly labor agreement in exchange for $35,000. 

The eight months where Percoco worked for Cuomo’s reelection campaign are key to the case before the high court. Percoco claims his role in this scheme sets him squarely in lobbyist — not criminal — territory. 

"Man Charged With Breaking Window Repeatedly at Manhattan Gay Bar"

From The New York Times:

Sean Kuilan, 34, of Hell’s Kitchen, the Manhattan neighborhood where the attacks occurred, was charged with criminal possession of a weapon, criminal mischief and reckless endangerment, according to the Police Department.

Keechant Sewell, the police commissioner, reiterated the charges in a statement on Twitter, but did not say if Mr. Kuilan would be charged with a hate crime. Still, in an appeal to the public before his arrest, the police described the string of attacks as a “hate crime pattern” and the department email identifying the arrested man had “hate crime” in its subject line.

. . . 

Mr. Bottcher posted footage from the bar’s security camera on Twitter that showed the attacker’s face, and on Monday the police posted footage from the security camera of a nearby bodega that showed the man walking through its aisles. The man wore a dark jacket, jeans and glasses and he purchased a drink before leaving, the video shows.

"What a hate crime case might look like for the Colorado Springs shooter"

From NPR, via NACDL's news update:

Officials are investigating the Colorado Springs nightclub shooting as a possible hate crime. Last year, state lawmakers made it easier for prosecutors to pursue hate crime charges.

"Jail Is a Death Sentence for a Growing Number of Americans"

From The New York Times:

Houston, whose jail has reached its highest population count in over a decade, is far from the only city where jails have become more fatal. Deaths have spiked in cities across the country, including New York, Oklahoma City, Seattle, Pittsburgh and Louisville, Ky. California, Texas and Georgia have also recorded statewide increases in deaths. Covid-19 accounts for only part of the rising toll — suicides and fatal overdoses have also increased in some places.

Jail officials blame a host of factors, including crowding, staff shortages, mental health issues exacerbated by the pandemic and the repurposing of beds in solitary confinement, once available to isolate violent detainees, that now must be used for quarantining the ill.

Janes on State Constitutions and Extreme Sentencing of Emerging Adults

Katharine M. Janes has posted Life or Death: Employing State Constitutional Principles of Proportionality to Combat the Extreme Sentencing of Emerging Adults (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:

The United States Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders must be treated differently from adults. Because those under the age of eighteen lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation, the imposition of extreme sentences—including the death penalty, mandatory life without parole, and discretionary life without parole for non-homicide offenses—is disproportionate and unconstitutional under the Eighth Amendment.

Emerging neuroscientific research strongly indicates that the immaturity, impressionability, and corrigibility of juveniles are also characteristics of emerging adults, defined here as individuals ages eighteen through twenty. Courts, however, have consistently resisted extending Federal Eighth Amendment protections to this demographic. As such, this Note proposes challenging the extreme sentencing of emerging adults as disproportionate under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitution. Further, recent litigation in Washington and Illinois demonstrates how successful challenges to disproportionate emerging-adult sentencing under state constitutional law can be achieved. This Note advocates that litigants launch facial challenges, in particular, under state constitutional provisions as a desirable mechanism for change.

"BREAKING DOWN THE ARTICLES OF IMPEACHMENT AGAINST KRASNER"

From the Philadelphia Inquirer, via NACDL's news of interest:

Philadelphia District Attorney Larry Krasner was impeached by the Pennsylvania House on Wednesday after Republican lawmakers said he engaged in “misbehavior in office” that justifies his removal.

The seven articles of impeachment make a range of accusations, including that Krasner, a Democrat, has fueled the city’s surge in homicides, mishandled criminal cases, and violated the rights of crime victims. The impeachment resolution passed 107-85, almost exclusively along party lines, with one Republican voting against it.

Concannon on Transphobic and Homophobic Hate Crime

Liam Concannon has posted an abstract of Protecting Difference: A Discussion on Transphobic and Homophobic Hate Crime in the Irish Context (Critical Social Policy 2022) on SSRN. Here is the abstract:

Ireland has been applauded internationally for its legislative progress in supporting the rights of LGBT+ citizens. Yet much of the positive change within the social and political context of sexuality and gender expression, has been achieved by campaign groups operating outside government boundaries. Notwithstanding these advances, LGBT+ people continue to face discrimination, abuse and violence. Concerns surrounding acts of aggression towards transgender and gay people call for an on-going dialogue between legislators, policy makers, and practitioners to explore ways in which safety can be ensured. This article draws from an emerging body of scholarship and research to question the effectiveness of current policy and legislation in Ireland. It offers a discourse on hate crime related to transphobia and homophobia, while challenging the existing political thinking. Multi-agency collaborative working is suggested as key to fostering solutions, together with changes in legal paradigms, and the continued formation of policy aimed at safeguarding the LGBT+ community.

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	307
2.	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	221
3.	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 [4th last week]	211
4.	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 [6th last week]	167
5.	Towards Collective Safety: Transformative Methodologies Sarah T. Hamid and Rachel Kuo Independent and The University of Illinois at Urbana-Champaign Date Posted: 03 Nov 2022	155
6.	The Immigration Implications of Presidential Pot Pardons Jason A. Cade University of Georgia School of Law Date Posted: 01 Nov 2022 [8th last week]	100
7.	Last Among Equals: Women’s Equality, R v Brown, and the Extreme Intoxication Defence Kerri Froc and Elizabeth A. Sheehy University of New Brunswick Faculty of Law and University of Ottawa - Common Law Section Date Posted: 27 Sep 2022 [new to top ten]	88
8.	Accidental Abolition? Exploring Section 230 as Non-Reformist Reform Kendra Albert Harvard Law School Date Posted: 17 Oct 2022 [9th last week]	88
9.	Bipartisan Safer Communities Act Robert Leider George Mason University - Antonin Scalia Law School, Faculty Date Posted: 19 Sep 2022 [new to top ten]	84
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]	83