CrimProf Blog

"Scorpion Unit Emerged as Memphis Police Pursued Get-Tough Strategy"

From The New York Times:

Chief Cerelyn Davis of the Memphis Police had been on the job for only a few months in 2021 when she saw that homicide numbers were rising toward a record. Near her new home downtown, drivers were buzzing wildly through the streets, often late at night. She had a plan to confront the mayhem.

For reckless drivers, she told her team, officers were to focus less on writing tickets and more on an all-out strategy of seizing cars from the most dangerous drivers. Violent offenders needed to be targeted with new urgency. If the state could not take a case to court, she determined, her agency should ask federal prosecutors to take the case instead.

. . . 

Two days later, Chief Davis, the first African American woman to lead the department, launched her most ambitious strategy: a new police unit named Scorpion — or Street Crimes Operation to Restore Peace in Our Neighborhoods — would deploy some 40 officers as a strike team in some of the most volatile corners of the city.

Anderson et al. on Sentences for Crimes Committed During Conditional Liberty

John Anderson, Brendon Murphy, and Mirko Bagaric (University of Newcastle (Australia) - Newcastle Law School, University of Newcastle (Australia) - Newcastle Law School and Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School) have posted Conditioning Sentencing to Prevent Double Counting of Offenders who Commit Offences while on Conditional Liberty (Melbourne University Law Review, Vol. 46, No. 1, 2022) on SSRN. Here is the abstract:

 

Defendants in criminal matters can be placed on numerous forms of conditional liberty, including bail, parole and community-based orders. Committing offences while on conditional liberty is regarded as an aggravating sentencing consideration. This results in heavier penalties often being imposed on this cohort of offenders. While this is a well-established sentencing principle, its doctrinal rationale remains unclear and, in some instances, seemingly flawed. In certain circumstances, committing an offence while on conditional liberty is a separate offence. In other situations, the breach of conditional liberty results in incidental punishment, such as revocation of bail or parole. Thus, increasing sanction severity for offenders who commit offences while on conditional liberty can result in double punishment. We propose a principled doctrinal approach for dealing with offences which are committed while on conditional liberty which would inject doctrinal clarity and fairness into the sentencing process.

Farber & Erez on Procedural Justice, Therapeutic Jurisprudence, and Reoffending

Shai Farber and Edna Erez (Bar-Ilan University - Faculty of Law and University of Illinois at Chicago) has posted Procedural Justice, Therapeutic Jurisprudence, and Reoffending: Adjudicating Palestinian Minors in the West Bank’s Military Court (Forthcoming, International Journal of Offender Therapy and Comparative Criminology) on SSRN. Here is the abstract:

 

The Juvenile Military Court (JMC), established in 2009 in the West Bank, handles offenses perpetrated by Palestinian minors, consisting mostly of security-related violations. With the establishment of the JMC, and a subsequent three-stage legal reform in handling juvenile offenders, Palestinian minor suspects and defendants have been accorded various procedural rights. This study addresses the impact of these rights on the criminal careers of Palestinian minors appearing in the JMC. It first reviews the demographic profile of 8,301 minors handled by the JMC between 2000 and 2018, describes their offenses, and offense transition between their initial and second arrest. Using trend analysis, the study compares minors’ reoffending level in the years before and after the reform. The findings suggest significant differences in minors’ reoffending level between the years preceding and following the legal reform. Possible explanations for the findings are offered, and the article concludes with policy implications and directions for future research.

Garrett et al. on Firearms Evidence

Brandon L. Garrett, Eric Tucker, and Nicholas Scurich (Duke University School of Law, Duke University - Duke University School of Law and University of California, Irvine) have posted Judging Firearms Evidence on SSRN. Here is the abstract:

 

Firearms violence results in hundreds of thousands of criminal investigations each year. To try to identify a culprit, firearms examiners seek to link fired shell casings or bullets from crime scene evidence to a particular firearm. The underlying assumption is that firearms impart unique marks on bullets and cartridge cases, and that trained examiners can identify these marks to determine which were fired by the same gun. For over a hundred years, firearms examiners have testified that they can conclusively identify the source of a bullet or cartridge case. In recent years, however, research scientists have called into question the validity and reliability of such testimony. Judges have also viewed such testimony with increased skepticism, especially after the Supreme Court set out standards for screening expert evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc.

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"Oakland could be ground zero for the future of police reform, community leaders say"

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

Longtime Oakland activists say the city’s police department needs a deeper effort toward reform if it is ever to exit a federal monitor and conclude a seemingly endless string of internal scandals that have seen the city push out multiple department chiefs.

That work will be lengthy, local leaders say.

“Rome wasn’t built in a day,” said Oakland’s inspector general Michelle Phillips to a panel assembled Friday night. Her office is designed to succeed the federal monitor, when the city finally transitions from a federal negotiated settlement.

Lott on Murder Concentrations

John R. Lott (Crime Prevention Research Center) has posted Murders in US Are Very Concentrated, and They Are Becoming Even More So on SSRN. Here is the abstract:

 

While murders and other violent crime in Los Angeles County and some other major urban areas have spread out to parts of those counties that didn’t previously experience much crime, nationwide murders appear to be coming even more concentrated in a small set of counties. When it comes to murder, there are three types of counties in the United States. Most counties experience no murders, a smaller set where there are a few murders, and then a tiny set of counties where murders are very common. In 2020, 52% of counties (with 10% of the population) had no murders. 68% of counties have no more than one murder, and about 18% of the population. These counties account for only 2.6% of all murders in the country. The worst 1% of counties (the worst 31 counties) have 21% of the population and 42% of the murders. The worst 2% of counties (62 counties) contain 31% of the population and 56% of the murders. The worst 5% of counties contain 47% of the population and account for 73% of murders. But even within those counties, the murders are very heavily concentrated in small areas.

Ramanambonona et al. on Arrest, Punishment, and Optimal Law Enforcement

Ambinintsoa Ramanambonona, Jean Razafindravonona & Dimby Ranoelimanana (Department of Economics, University of Antananarivo, University of Antananarivo and University of Antananarivo) have posted Optimal Law Enforcement : Nuance Between Arrest and Punishment on SSRN. Here is the abstract:

 

In the economic literature on law enforcement, the distinction between the probability of arrest and the probability of conviction is not explicit. However, detection does not necessarily imply punishment. This paper focuses on proving that punishment cannot be applied without preceding detection. In this context, in the case of non-apprehension, the offender expects a double gain: monetary and non-monetary gains. The result shows that if the probability of arrest is high, the reputation evaporates, which means the arrest has a deterrent effect on crime insofar as it generates a bad reputation for the offender. The monetary sanction has a deterrent effect on the monetary benefit from crime in the sense that this variable is less elastic than punishment cost. The low probability of punishment can be compensated by a maximum punishment.

Menon on Facial Recognition Technology in Criminal Identification

Arjun Menon (Sharda University) has posted Leveraging Facial Recognition Technology in Criminal Identification (Interdisciplinary Innovations and Developments towards Smart and Sustainable Industries) on SSRN. Here is the abstract:

 

Detecting and identifying a criminal is a time-consuming and complex task. Criminals have become more astute in recent years, leaving no genetic evidence or fingerprint traces at the crime site. Using state-of-the-art facial identification technology is a quick and simple option. Surveillance cameras are being deployed at most buildings and traffic signals for monitoring reasons, thanks to advancements in security technology. Perpetrators, offenders, runaways, and lost individuals can all be identified using the camera's video recordings. This article aims to provide a brief survey of current improvements in face recognition, as well as a complete overview of several approaches to incorporating face detection in criminal identification based on various application scenarios. We also look at the evolution of facial recognition and where it is now in this study. It gives an overview of the internal architecture of a typical face detection system. It also highlights the obstacles that will be faced in instilling facial recognition as well as approaches to improve it while taking various trade-offs into account. It also identifies areas for future research in the incorporation of facial identification in a variety of sectors.

Arkush & Braman on Climate Homicide

David Arkush and Donald Braman (Public Citizen and George Washington University - Law School) have posted Climate Homicide: Prosecuting Big Oil For Climate Deaths on SSRN. Here is the abstract:

 

Prosecutors regularly bring homicide charges against those whose reckless or negligent acts or omissions cause unintentional deaths, as they do against those whose misdemeanors or felonies cause unintentional deaths. Fossil fuel companies learned decades ago that what they produced, marketed, and sold would generate “globally catastrophic” climate change. Rather than alert the public and curtail their operations, they worked to deceive the public about these harms and to prevent regulation of their lethal conduct. They funded efforts to call sound science into doubt, to confuse their shareholders, consumers, and regulators, and they poured money into political campaigns to elect judges, legislators, and executives hostile to any litigation, regulation, or competition that might limit their profits. Today, the climate change that they forecast has already killed tens of thousands of people in the United States, and it is expected to become increasingly lethal for the foreseeable future. Given the extreme lethality of the conduct and the awareness of the catastrophic risk on the part of fossil fuel companies, should they be charged with homicide? Could they be convicted? In answering these questions, this Article makes several contributions to our understanding of criminal law and the role it could play in combating crimes committed at a massive scale. It describes the doctrinal and social predicates of homicide prosecutions when deaths reach into the thousands or millions. It also identifies important advantages of homicide prosecutions relative to civil and regulatory remedies, and it details how and why prosecution for homicide may be the most effective legal remedy available in cases like this. Finally, it argues that, if our criminal legal system cannot focus more intently on climate crimes—and soon—we may leave future generations with significantly less for the law to protect.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply. 

Rank	Paper	Downloads
1.	Murders in US Are Very Concentrated, and They Are Becoming Even More So John R. Lott Crime Prevention Research Center Date Posted: 18 Jan 2023 [new to top ten]	1,628
2.	Concealed Carry Permit Holders Across the United States: 2022 John R. Lott Crime Prevention Research Center Date Posted: 12 Dec 2022 [1st last week]	965
3.	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 [2nd last week]	381
4.	Disrupting Drug Markets: The Effects of Crackdowns on Rogue Opioid Suppliers Adam Soliman Duke University, Department of Economics Date Posted: 23 Jan 2023 [new to top ten]	241
5.	Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover (Excerpt) Jeffrey Bellin William & Mary Law School Date Posted: 20 Dec 2022 [3rd last week]	93
6.	Estimating the Effect of U.S. Concealed Carry Laws on Homicide: A Replication and Sensitivity Analysis Matthew Bondy, Samuel Cai and John J. Donohue Stanford Law School, Stanford Law School and Stanford Law School Date Posted: 01 Dec 2022 [4th last week]	40
7.	As One is, So One Sees Gerald J. Postema University of North Carolina - Philosophy Date Posted: 03 Jan 2023 [new to top ten]	27
8.	Factors Influencing Tax Evasion from a Global Perspective in the Light of Gender Robert W. McGee, Jovan Shopovski and Monika Bolek Fayetteville State University - Department of Accounting, European Scientific Institute, ESI and University of Lodz Date Posted: 05 Dec 2022 [5th last week]	22
9.	Deterrence or Backlash? Arrests and the Dynamics of Domestic Violence Sofia Amaral, Gordon B. Dahl, Victoria Endl-Geyer, Timo Hener and Helmut Rainer CESifo (Center for Economic Studies and Ifo Institute) - Ifo Institute, UC San Diego - Department of Economics, CESifo (Center for Economic Studies and Ifo Institute) - Ifo Institute, Department of Economics and Business Economics and CESifo (Center for Economic Studies and Ifo Institute) - Ifo Institute Date Posted: 06 Jan 2023 [new to top ten]	18
10.	Forming a 'Brain Print:' Using Cognitive Neuroscience and Brain Imaging as an Objective Measure of Criminal Insanity Christos Strubakos University of Detroit Mercy School of Law Date Posted: 02 Jan 2023 [new to top ten]	18

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Problem with Capital Pleas William W. Berry III University of Mississippi School of Law Date Posted: 08 Dec 2022	119
2.	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 [3rd last week]	105
3.	Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover (Excerpt) Jeffrey Bellin William & Mary Law School Date Posted: 20 Dec 2022 [4th last week]	92
4.	A World Without Prosecutors Jeffrey Bellin William & Mary Law School Date Posted: 13 Dec 2022 [5th last week]	67
5.	Fact Stripping Joseph Blocher and Brandon L. Garrett Duke University School of Law and Duke University School of Law Date Posted: 27 Dec 2022 [6th last week]	66
6.	Selective Prosecution, Selective Enforcement, and Remedial Vagueness Guy Rubinstein Harvard Law School Date Posted: 28 Nov 2022 [7th last week]	51
7.	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 [8th last week]	46
8.	Hidden Killers and Imagined Saints: Why Courts Fail to Identify Unconstitutional Jurors in Death Penalty Cases Eric Carpenter FIU College of Law Date Posted: 15 Dec 2022 [9th last week]	45
9.	Fourth Amendment Constraints on Automated Surveillance Technology in the Public to Safeguard the Right of an Individual to be 'Secure in Their Person' Srivats Shankar University of California, Irvine School of Law Date Posted: 04 Jan 2023 [new to top ten]	37
10.	Could Donald Trump Be Legally Stopped from Running for President? An Analysis of Bar-to-Office Pleas and Probation Terms Nino Monea United States Army, Judge Advocate General's Corps Date Posted: 04 Dec 2022	36

Wozniak et al. on Selling Effective Violence Prevention Policies

Kevin Wozniak (Maynooth University) has posted Selling Effective Violence Prevention Policies to the Public: A Nationally Representative Framing Experiment (Pickett, J.T., Ivanov, S., and Wozniak, K.H. (2022). Journal of Experimental Criminology, 18, 387-409) on SSRN. Here is the abstract:

 

Objectives: After years of decreasing public punitiveness and declining crime rates, politicians are seeking evidence-based crime policies to reduce mass incarceration without increasing crime. One such policy that has been implemented in several US cities is the Operation Peacemaker Fellowship (OPF), which incentivizes conformity and program participation by providing monetary stipends to individuals at risk of violent offending, thereby simultaneously reducing violence and incarceration. Yet, there is no evidence about public support for such policies.

Methods: Using a nationally representative survey experiment, we examine public support for violence prevention stipends. We employ a referendum-style, contingent valuation design to measure the impact of tax increases versus tax savings on public opinion, and we randomize message framing that emphasizes the stipend program’s risky versus protective features.

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Allen & Pardo on Evidence, Probability, and Relative Plausibility

Ronald J. Allen & Michael S. Pardo (Northwestern University Pritzker School of Law and Georgetown University Law Center) have posted Evidence, Probability, and Relative Plausibility: A Response to Aitken, Taroni & Bozza (Forthcoming, International Journal of Evidence and Procedure) on SSRN. Here is the abstract:

 

In a recent article, Colin Aitken, Franco Taroni, and Silvia Bozza defend a probabilistic account of juridical proof and critique our “relative plausibility” account on both positive and normative grounds. We are grateful for their thoughtful engagement with our work and for the opportunity to further clarify relative plausibility. In this response, we explain why their critiques fail. First, we explain why their probabilistic alternative is not a plausible account of juridical proof and could not be. Because the account they give of juridical proof cannot possibly be operationalized, any claims of normative superiority are pointless. At a more discrete level, however, aspects of their analysis are valuable and illuminating. In addition to demonstrating problems with the foundation of their argument and their misunderstandings of relative plausibility, we also explain how the issues discussed relate to the important work being done by Aitken, Taroni, and Bozza in the field of forensic science.

Morgan on Disability, Policing, and Punishment

Jamelia Morgan (Northwestern University - Northwestern Pritzker School of Law) has posted Disability, Policing, and Punishment: An Intersectional Approach (Oklahoma Law Review, Vol. 75, No. 169, 2022) on SSRN. Here is the abstract:

 

Disabled people of color are uniquely vulnerable to policing and punishment. Proponents of police reform and, more recently, police abolition note that disabled people, particularly people with psychiatric disabilities, are vulnerable to citation and arrest.

Indeed, data on the high percentages of people in prisons and jails who report having a diagnosed disability lend support to this claim. Some advocates have referred to the criminalization of mental illness as a way to describe these vulnerabilities and ground their calls for change in the criminal legal system. Yet, even the compelling charge that mental illnesses are criminalized, or that prisons and jails are the “new asylums,” fails to fully account for the ways that race and disability work in tandem to render disabled people of color vulnerable to criminal legal system involvement. A more comprehensive account of mass incarceration and how it produces disability-based subordination is needed.

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Chin on National Federal Criminal Bar Admission

Gabriel "Jack" Chin (University of California, Davis - School of Law) has posted Toward National Criminal Bar Admission in U.S. District Courts (Fordham Law Review, Vol. 89, No. 4, 1111 2021) on SSRN. Here is the abstract:

 

This essay proposes that attorneys admitted to any state bar and any U.S. District Court, should be allowed to practice criminal law in all districts in the country. U.S. District Courts control admission to practice in various ways. Roughly, some require admission to the bar of any state, while others require admission to practice in the state where the district is located. The latter approach is difficult to justify. Unlike civil practice, federal criminal practice involves application of textually identical bodies of law which are supposed to be allied uniformly across the United States: The U.S. Code, U.S. Sentencing Guidelines, Federal Rules of Criminal Procedure and Federal Rules of Evidence. In the criminal context, there is almost no connection to the law of the state where the federal court happens to be located. There is also a serious access to justice issue created by limiting criminal practice to those admitted to the bar of the state. Lawyers for the United States can generally practice if admitted to any state bar, so only defenders are limited by the requirement. Affluent defendants can readily pay for local counsel if necessary, and so are not deprived of the assistance of counsel of their choice by this bar admission rule. Primarily, then, it is less affluent clients who are harmed by such a rule. The strong public interest in equal access to justice and economical provision of defense services suggests that there should be some justification for denial of counsel of choice. There does not seem to be such a justification in this context.

"A salacious murder trial is underway in South Carolina"

From NPR, via NACDL's news update:

Attorney Alex Murdaugh is accused of murdering his wife and son and embezzling millions from his former clients.

Bertoli et al. on Border Apprehensions and Sentencing of Hispanic Citizens

Simone Bertoli, Morgane Laouénan & Jérôme Valette (Université d'Auvergne - Clermont 1 - Centre d'Etudes et de Recherches sur le Developpement International (CERDI), Catholic University of Louvain (UCL) and Université Paris I Panthéon-Sorbonne - Centre d'Economie de la Sorbonne (CES)) have posted Border Apprehensions and Federal Sentencing of Hispanic Citizens in the United States (IZA Discussion Paper No. 15866) on SSRN. Here is the abstract:

 

We provide evidence that Hispanic citizens receive significantly longer sentences than non-Hispanic citizens in the Federal Criminal Justice System in the United States when a higher number of illegal aliens are apprehended along the southwest border. Apprehensions can increase the salience of Hispanic ethnic identity, which is associated with persistent negative stereotypes, and can also deteriorate attitudes toward Hispanics. We rule out concerns that apprehensions might be conveying legally relevant information to judges. Thus, we provide direct evidence for time-varying discrimination toward Hispanic defendants. Our estimated effect is only at play for defendants without a heavy previous criminal record.

Kammel on Trademark Anti-Counterfeiting Prosecutions

Kari Kammel (A-CAPP Center) has posted Survey & Legal Analysis of Select Global Trademark Anti-Counterfeiting Statutes & Evidence of Prosecutions (Marquette Intellectual Property Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Analysis of criminal trademark counterfeiting-related legislation and evidence of prosecutions in 24 countries and the European Union. The initial goal was to understand, describe and evaluate the effectiveness of criminal punishment for trademark counterfeiting in this comparative study, while also exploring the feasibility of further studies of global governmental criminalization and prosecution of trademark counterfeiting.

"A “DIG” on attorney-client privilege: Why the court decided not to decide In re Grand Jury"

Stephen Gillers has this post at ScotusBlog. In part:

Questions from the bench showed no ideological split. Rather, they revealed concern over the scope of secrecy that would ensue if either of the law firm’s proposed tests were adopted. Informally, this may be labeled “the lawyer in the room” problem. Can a client ensure privilege protection for communications that standing alone would not be privileged through the expediency of including a lawyer in the conversation, no matter how modest his or her contribution to a solution of the question on the table? Such an answer would favor clients wealthy enough to add a lawyer to the room. And it would give law firms more business.

Perlin et al. on State Courts and Panetti v Quarterman

Michael L. Perlin, Talia Roitberg Harmon, and Maren Geiger (New York Law School, Niagara University and Niagara University, Department of Criminal Justice) have posted 'The Timeless Explosion of Fantasy's Dream': How State Courts Have Ignored the Supreme Court’s Decision in Panetti v. Quarterman pm SSRN. Here is the abstract:

 

Multiple states have enacted statutes to govern procedures when a state seeks to execute a person who may be incompetent to understand why s/he is being so punished, an area of the law that has always been riddled with confusion. The Supreme Court, in Panetti v. Quarterman, 551 U.S. 930 (2007), sought to clarify matters, ruling that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.” Id. at 968. However, the first empirical studies of how Panetti has been interpreted in federal courts painted a dismal picture. Only a handful of defendants have ever been successful in federal courts in seeking to enforce the Panetti ruling, see Michael L. Perlin & Talia R. Harmon, “Insanity is Smashing up Against My Soul”: The Fifth Circuit and Competency to be Executed Cases after Panetti v. Quarterman (with Prof. Talia Harmon,) 60 U. LOUISVILLE L. REV. 557 (2022), and two of the authors of this abstract have characterized the relief ostensibly offered by that case as nothing more than an “illusion” or a “mirage” in a federal context, see Michael L. Perlin, Talia R. Harmon & Haleigh Kubiniec, “The World of Illusion Is at My Door”: Why Panetti v. Quarterman is a Legal Mirage, 59 CRIM. L. BULL. -- (2023) (in press). The issues of believability of experts, allegations of malingering, and “synthetic competency” dominated these decisions.

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