CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	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 [2nd last week]	116
2.	Aerial Trespass and the Fourth Amendment Randall Khalil Independent Date Posted: 02 Nov 2022 [3d last week]	108
3.	The Problem with Capital Pleas William W. Berry III University of Mississippi School of Law Date Posted: 08 Dec 2022 [4th last week]	90
4.	Racial Bias in Criminal Records Ben Grunwald Duke University School of Law Date Posted: 23 Nov 2022 [5th last week]	78
5.	Privacy in the Panopticon: The Fourth Amendment Case Against Perpetual Surveillance John Jarecki University of Dayton School of Law Date Posted: 11 Nov 2022 [6th last week]	60
6.	The History of Double Jeopardy and Criminal Jurisdiction: US v. Gamble (2019) and R. v. Hutchinson (1677) Ann Mumford and Peter W. Alldridge King's College London - The Dickson Poon School of Law and Queen Mary, University of London Date Posted: 01 Nov 2022 [7th last week]	55
7.	Selective Prosecution, Selective Enforcement, and Remedial Vagueness Guy Rubinstein Harvard Law School Date Posted: 28 Nov 2022 [8th last week]	37
8.	Jesus’s Objections During His Preliminary Examination and Modern Notions of Due Process Melvin Otey Faulkner University - Thomas Goode Jones School of Law Date Posted: 30 Nov 2022 [9th last week]	36
9.	Forensic Evidence and its Use in Nigerian Criminal Investigations Ignatius Egenti Independent Date Posted: 08 Dec 2022 [new to top ten]	26
10.	Probable Cause Reform as Bail Reform Wendy Calaway University of Cincinnati Date Posted: 02 Nov 2022 [new to top ten]	25

Garrett et al. on Liberty, Safety, and Misdemeanor Bail

Brandon L. Garrett, Sandra Guerra Thompson, Dottie Carmichael and Songman Kang (Duke University School of Law, University of Houston Law Center, Texas A&M University and Duke University - Trinity College of Arts & Sciences) have posted Liberty, Safety, and Misdemeanor Bail on SSRN. Here is the abstract:

 

The highest volume cases in the American criminal system are misdemeanors, and every day, hundreds of thousands of people are detained pretrial in such low-level cases. In policy and in politics, pretrial rules have swung between a focus on protecting constitutional rights and the public safety dangers posed by releasing arrestees. The Supreme Court’s ruling in Salerno sought to balance individual due process rights as against government public safety interests. A central question is what trade-off exists between protecting rights and reoffending.

Perhaps the highest profile jurisdiction to examine that question is Harris County, Texas, the third largest jurisdiction in the United States, which implemented the largest scale and farthest-reaching constitutional remedies in a misdemeanor bail system. In 2019, after years of federal litigation and a preliminary injunction finding pervasive constitutional violations, Harris County entered a Consent Decree requiring comprehensive reform. In this Article, we describe constitutional remedies that this novel Consent Decree set out and the implementation of those remedies. Second, we address the central question of bail: whether pretrial release comes at a cost to public safety.

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Woo & Yamaguchi on Capital Abortion

Owen Woo and Lauren Yamaguchi (Northeastern University and Northeastern University) have posted Pro-Life, Pro-Death: The Convergence of Abortion Restrictions and the Death Penalty in Texas on SSRN. Here is the abstract:

 

On June 24, 2022, the Supreme Court eliminated the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization. With abortion no longer a constitutional right, there are few limits to how a state may enforce its abortion restrictions. A new era of abortion criminalization has begun. The criminalization of abortion is particularly dangerous in states that still recognize the death penalty as a form of punishment.

This paper analyzes the possibility of abortions being charged as capital homicide, with a specific focus on the state of Texas. Texas has enacted the most restrictive abortion laws and highest number of executions in the nation. Texas can enumerate capital abortion by changing the family code definition of a “living child” as one alive from the moment of fertilization and by eliminating abortion-related exemptions to homicide. Legislative initiatives and the adoption of reproductive justice framework are the best defenses to legal pathways for capital abortion.

Resnik on Weighing Judicial Authority

Judith Resnik (Yale University - Law School) has posted Global Constitutionalism 2022 Weighing Judicial Authority on SSRN. Here is the abstract:

 

This 2022 e-book, Weighing Judicial Authority, for Yale’s Global Constitutionalism Seminar, is the eleventh e-book in a series that began in 2012. We compiled this volume amidst the ongoing challenges of climate change and COVID as well as the intense debates about democratic practices and restructuring courts, about family arrangements and personal life, and about the responsibilities of constitutional jurists to address these issues. Through a series of chapters previewed below, this volume offers windows into how courts have in recent times responded.

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"Illinois will become the first state to do away with cash bail"

From NPR, via NACDL's news update:

The Pretrial Fairness Act is part of a sweeping criminal justice reform package. Amid fierce Republican opposition and a pending lawsuit, Illinois prepares to implement the change on Jan. 1.

. . .

Other states have come close, like California, where efforts to pass similar legislation have been stalled, with fierce opposition coming from the bail bonding industry. 

"Ninth Circuit Judge Urges Supreme Court "Not to Give Any First Amendment Protection for Racist Hate Speech""

Eugene Volokh has this post at The Volokh Conspiracy. He excerpts the opinion and opines as follows:

This is indeed not consistent with existing Supreme Court precedents—under which there is no "hate speech" exception to the First Amendment—and I think the Court's precedents are correct on this point. (As to why Beauharnais is inconsistent with more recent precedents, see here.) But precisely because it so forthrightly calls for reducing free speech protections here, Judge Gould's concurrence struck me as noteworthy.

Achim et al. on Financial Crime

Monica Violeta Achim, Sorin Nicolae Borlea, Mihai Gaicu, Robert W. McGee, Gabriela-Mihaela Muresan and Viorela Ligia Vaidean (Faculty of Economics and Business Administration, Faculty of Economic Sciences, Computer Science and Engineering, Sas Instituut, Fayetteville State University - Department of Accounting, Babes-Bolyai University - Faculty of Economics and Business Administration and Babes-Bolyai University - Faculty of Economics and Business Administration) have posted Financial Crime: Conclusions and Recommendations (In Monica Violeta Achim & Robert W. McGee (Eds.), Financial Crime Community Pulse: A Romanian Survey (pp. xxx-xxx), Switzerland: Springer Brief) on SSRN. Here is the abstract:

 

This chapter discusses the conclusions and recommendations resulting from the study. A series of infographs is included to summaries the results of the study using a format that makes it easy for the reader to understand.

"Millionaire Serial Rapist Likely to Be Released in 4 Years Due to “Reforms”"

From Kent Scheidegger at Crime & Consequences. In part:

With the very deep pockets of George Soros, the backers of Proposition 57 assured the voters that its new parole provision would only be for “non-violent offenders.” Surely that excludes rapists. Doesn’t it?

. . . 

Proposition 20 of 2020 would have gone a long way toward fixing the definition of violent crime. But the opponents had a funding advantage of nearly six to one,  according to this CalMatters report. They snowed the people once again, and that is why this monster is eligible for parole.

 

Bellin on Mass Incarceration

Jeffrey Bellin (William & Mary Law School) has posted Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover (Excerpt) (Cambridge University Press, 2023) on SSRN. Here is the abstract:

 

Despite some reductions in recent years, the United States continues to imprison a stunningly high proportion of its population. And the modest reforms enacted so far face an uncertain future in light of a growing perception of rising crime and the persistent allure of “tough on crime” politics.

Lasting progress requires an understanding of the true complexity of mass incarceration, including the myriad factors that fuel the phenomenon. A new book, Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover, offers that understanding, providing a novel, descriptive account of the rise of mass incarceration that draws on the author’s experience both as an academic researcher and as a participant in the phenomenon (as a former prosecutor). The final part of the book turns this descriptive account into a prescription for reform. By highlighting the precise mechanisms by which legislators, police, prosecutors, judges, and other officials, overfill our prisons and jails, the book reveals a path to returning to the low incarceration rates (and low crime) that characterized the United States prior to the 1970s.

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Monea on Military Justice During the War on Terror

Nino Monea (United States Army, Judge Advocate General's Corps) has posted Military Justice Trends During the Global War on Terror on SSRN. Here is the abstract:

 

Each year, the military high court and each of the services publish a trove of data on the military justice system. This Article uses that data to analyze twenty years of military justice data, supplemented by Department of Defense data on sexual assaults. All told, over 4,000 pieces of information are used to illustrate how the military justice system has been transformed over the course of the last two decades. Courts-martial, including appeals, are far fewer in number in recent years, but more vexing as sexual assault has become the most common crime. The JAG Corps has expanded, in part to accommodate the special needs of sexual assault cases. And data suggests that while challenges remain for tackling sexual assaults in the military, there are signs that sexual assault cases are being taken more seriously.

Gopikrishna on Darknet Drug Trade

Ojasi Gopikrishna has posted Economic Analysis of Darknet Drug Trade on SSRN. Here is the abstract:

What are the economics of the cyber drug trade that is rampant across the globe? What are the impacts that an illicit online drug trade can have on the economy? How does the economy take into consideration the unreported transactions on the dark side of the internet and what are the positive and negative implications of a widespread trade like this in these globalizing times? This research paper aims to analyze various data and information to find and conclude how the darknet drug trade has had significant economic impact on the international financial sector. This paper also elaborates on why the black market is highly prevalent in the current times and what are the ill-effects of Darknet, in particular, drug trade on the Darknet. The analysis of economic consequences of unreported dealings is also taken into consideration and elaborated on. The paper sheds light on the bleak and disturbing statistics of involvement of various countries in the online drug ring marketplace with countries like the United States, India and Turkey dealing heavily in the illegal Darknet drug markets. A statistical analysis to determine the economic calculations of the drug trade is depicted and conclusions about the economical structure of the dark net drug trade and markets and its impact through the times is elaborated upon. The ill-effects of the Darknet drug trade are highlighted and conclusions drawn in the paper depict the fluctuating condition of the online illegal drug trade market.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution Alan Z. Rozenshtein and Jed Handelsman Shugerman University of Minnesota Law School and Fordham Law School Date Posted: 31 Oct 2022 [3rd last week]	322
2.	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	183
3.	The Immigration Implications of Presidential Pot Pardons Jason A. Cade University of Georgia School of Law Date Posted: 01 Nov 2022 [4th last week]	140
4.	Survival Homicide Michal Buchhandler-Raphael Widener University - Commonwealth Law School Date Posted: 02 Nov 2022 [6th last week]	78
5.	Incitement to Insurrection and the First Amendment Alexander Tsesis Loyola University Chicago School of Law Date Posted: 03 Nov 2022 [8th last week]	63
6.	Dialogues on Causation with Puppe Richard W. Wright Illinois Inst. Tech., Chicago-Kent College of Law Date Posted: 01 Nov 2022 [10th last week]	55
7.	Guns, Mass Incarceration, and Bipartisan Reform: Beyond Vicious Circle and Social Polarization Mugambi Jouet University of Southern California Gould School of Law Date Posted: 31 Oct 2022 [new to top ten]	54
8.	Estupradores / Rapists (DCH) Vanessa Massuchetto Maria Sibylla Merian Centre Conviviality-Inequality in Latin America Date Posted: 01 Nov 2022 [9th last week]	53
9.	Does Decriminalization Cause More Drug Overdose Deaths? Evidence from Oregon Measure 110 Noah Spencer University of Toronto - Department of Economics Date Posted: 30 Nov 2022 [new to top ten]	52
10.	The Visibility Trap Kate Redburn Columbia Law School Date Posted: 31 Oct 2022 [new to top ten]	46

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	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	177
2.	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	116
3.	Aerial Trespass and the Fourth Amendment Randall Khalil Independent Date Posted: 02 Nov 2022	104
4.	The Problem with Capital Pleas William W. Berry III University of Mississippi School of Law Date Posted: 08 Dec 2022	89
5.	Racial Bias in Criminal Records Ben Grunwald Duke University School of Law Date Posted: 23 Nov 2022 [new to top ten]	76
6.	Privacy in the Panopticon: The Fourth Amendment Case Against Perpetual Surveillance John Jarecki University of Dayton School of Law Date Posted: 11 Nov 2022	58
7.	The History of Double Jeopardy and Criminal Jurisdiction: US v. Gamble (2019) and R. v. Hutchinson (1677) Ann Mumford and Peter W. Alldridge King's College London - The Dickson Poon School of Law and Queen Mary, University of London Date Posted: 01 Nov 2022 [9th last week]	53
8.	Selective Prosecution, Selective Enforcement, and Remedial Vagueness Guy Rubinstein Harvard Law School Date Posted: 28 Nov 2022 [new to top ten]	35
9.	Jesus’s Objections During His Preliminary Examination and Modern Notions of Due Process Melvin Otey Faulkner University - Thomas Goode Jones School of Law Date Posted: 30 Nov 2022 [new to top ten]	33
10.	Dresser Drawer Pardons: Pardons as Private Acts Andrew Ingram University of Texas at Austin - Department of Philosophy Date Posted: 03 Oct 2022 [new to top ten]	30

   

Stricot on Factors Behind (Under-)Reporting of Sexual Violence

Maëlle Stricot (Paris School of Economics (PSE)) has posted Understanding the factors behind the (under-)reporting of sexual violence: Evidence from France on SSRN. Here is the abstract:

 

Using data from the French victimisation survey, this paper explores the determinants of reporting sexual violence to the police. My contribution to the economics of crime and economics of social norms literature is threefold. First, using binary regression models, I show that assault characteristics have higher explanatory power than victim's socio-demographic characteristics on this high-stakes individual decision. This descriptive analysis also highlights the significant influence of victims' social stigmatisation on the decision to file a complaint. Second, I employ a difference-in-difference strategy comparing the reporting rate for sexual and physical violence to analyse the effect of two high-profile sexual assault cases that pictured different representations of victims and the reporting process. On average, I find a 158% drop in sexual violence reporting following the allegations against Dominique Strauss-Kahn in May 2011, compared to a 111% increase after the ones against Harvey Weinstein in October 2017. Third, I provide evidence that changes in opinions and representations about sexual violence seem to be the primary mechanism explaining the increase in sexual violence reporting after the Weinstein case and #MeToo. These results suggest that social norms and representations surrounding sexual violence firmly influence the victim's reporting decision.

"Aaron Dean's Conviction Suggests What It Takes To Hold Cops Accountable for Wrongly Using Deadly Force"

From Reason, via NACDL's news update:

Aaron Dean, a former Fort Worth police officer who was convicted of manslaughter last week for shooting 28-year-old Atatiana Jefferson through her bedroom window in 2019, was sentenced yesterday to nearly 12 years in prison. The case is a rare example of a situation in which a cop was not only charged but successfully prosecuted for the wrongful use of deadly force. As such, it suggests the sort of circumstances that are necessary to achieve that outcome.

Carpenter on Unconstitutional Capital Jurors

Eric Carpenter (FIU College of Law) has posted Hidden Killers and Imagined Saints: Why Courts Fail to Identify Unconstitutional Jurors in Death Penalty Cases (Michigan State Law Review, Vol. 2021, p. 449, 2021) on SSRN. Here is the abstract:

 

What if half of the people in the jury pool for a capital case are unqualified to sit—and the lawyers are not accurately identifying and removing them? And what if the lawyers are actually identifying the wrong people as unqualified and removing them instead?

This appears to be the case. The Constitution prohibits jurors who will always (or never) vote to impose the death penalty. As developed in this Article, the existing social science suggests that 5–30% of potential jurors may be automatic death penalty (ADP) voters and between 2–34% may be automatic life sentence (ALS) voters. Further, lawyers are not accurately identifying them. Researchers have surveyed jurors who sat in capital cases and found that a stunning 14–57% were ADP voters, while 2–7% were ALS voters. Meanwhile, qualified venirepersons are being tossed out. Researchers have found that 60–65% of those classified as ALS could vote for death in some circumstances, and at trial, this would result in the exclusion of life-leaning venirepersons. The high rate of improperly included ADP voters along with the high rate of improperly excluded life-leaning voters stacks the jury pool against the defendant. This unfair and unreliable process calls into question whether the death penalty is constitutional as applied.

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Heminway on Criminal Insider Trading in Personal Networks

Joan MacLeod Heminway (University of Tennessee College of Law) has posted Criminal Insider Trading in Personal Networks (Stetson Bus. L. Rev (2022)) on SSRN. Here is the abstract:

 

This Article describes and comments on criminal insider trading prosecutions brought over an eleven-year period. The core common element among these cases is that they all involve alleged tipper/tippee insider trading or misappropriation insider trading implicating information transfers between or among friends or family members (rather than merely business connections). The ultimate objectives of the Article are to explain and comment on the nature of these criminal friends-and-family insider trading cases and to posit reasons why friends and family become involved in criminal tipping and misappropriation - conduct that puts both the individual friends and family members and the relationships between and among them at risk.

"When Incarceration Is Automatic: Mandatory Minimums and Race"

From Center for Court Innovation, via NACDL's news update:

Our analysis of felony arrests in New York City found a third of people charged were potentially subject to a minimum.

The impact of minimums differs starkly by race. We found Black people were more likely to be arrested for a felony, and, among those convicted, more likely to suffer imprisonment and more likely to receive a minimum sentence.

"Marijuana legalization and record clearing in 2022"

From Collateral Consequences Resource Center, via NACDL's news update:

CCRC is pleased to announce a new report on recent cannabis-specific record sealing and expungement reforms in the past 18 months. The report, extending CCRC’s fruitful collaboration with the Drug Enforcement and Policy Center at The Ohio State University, is available here. 

An accompanying infographic (reproduced at the end of this postr) summarizes the report’s findings, and includes a color-coded US map showing which states have enacted cannabis-specific record-clearing provisions.  To supplement the map, the report includes an appendix classifying and describing marijuana-specific record clearing statutes in all 50 states, based on CCRC’s 50-state comparison chart on “Marijuana Legalization and Expungement.” 

Levin on Capers on Prosecutors and Victims

Benjamin Levin (University of Colorado Law School) has posted Victims' Rights Revisited (13 Calif. L. Rev. Online 30) on SSRN. Here is the abstract:

 

This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of victims’ rights. I see "Against Prosecutors" as illustrating an impulse among many progressive and left commentators to suggest that decarceration and victims’ rights actually could go hand-in-hand. Ultimately, I argue that this (re)turn to victims’ rights has some promise but should be cause for concern for critics of the carceral state.