CrimProf Blog

Masur et al. on Labor Mobility and Police

Jonathan S. Masur, Aurelie Ouss, John Rappaport (University of Chicago - Law School, University of Pennsylvania and University of Chicago - Law School) have posted Labor Mobility and the Problems of Modern Policing (NYU Law Review (Forthcoming)) on SSRN. Here is the abstract:

 

We document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.

We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, rank, and seniority—and discuss its normative implications. On the one hand, job stability may encourage investment in training and expertise by agencies and officers alike; it may also attract some high-quality candidates, including candidates from underrepresented backgrounds, to the profession. On the other hand, low labor mobility can foster sclerosis in police departments, entrenching old ways of policing. Limited outside options may lead officers to stay in positions that suit them poorly, decreasing morale and productivity and potentially contributing to the scale of policing harms. In turn, the lack of labor mobility makes it all the more important to police officers to retain the jobs they have. This encourages them to insist on extensive labor protections and to enforce norms like the “blue wall of silence,” which exacerbate the problem of police misconduct. We suggest reforms designed to confer the advantages of labor mobility while ameliorating its costs.

Rao & Sharma on Markets and Criminal Justice

R. Venkata Rao and Prakash Sharma (Vivekananda Insitute of Professional Studies - Vivekananda School of Law and Legal Studies and Vivekananda Institute of Professional Studies) have posted Privatization Framework and Processes of Criminal Justice System: Quo Vadis? on SSRN. Here is the abstract:

 

The emergence of global economic prosperity has been deeply tied to the annihilation of governments (meant exclusively for the interest of their citizens). So much so, that markets and their values have replaced governments. As a result, the State has assumed the role of facilitator and regulator, wherein the market demands minimum interference. In fact, policies are structured in such a way that allows the market to work freely. The present paper analyzes privatization and its impact on the criminal justice system (CJS). The paper highlights the interplay between government action and the role of the market, vis- à-vis the security industry and their perspective towards citizenry.

Perlin et al. on Juveniles with ASD or FAS/FASD

Michael L. Perlin, Heather Cucolo, and Deborah Dorfman (New York Law School, New York Law School and Disability Rights Connecticut) have posted “I Saw Guns and Sharp Swords in the Hands of Young Children”: Why Mental Health Courts for Juveniles with Autism Spectrum Disorder and Fetal Alcohol Spectrum/Disorder Are Needed on SSRN. Here is the abstract:

 

In this article, we offer – we believe for the first time in the scholarly literature -- a potentially (at least partially) ameliorative solution to the problems faced by persons with autism(ASD) and fetal alcohol syndrome/disorder (FAS/FASD) in the criminal justice system: the creation of (separate sets of) problem-solving juvenile mental health courts specifically to deal with cases of juveniles in the criminal justice system with ASD, and with FAS/FASD. There is currently at least one juvenile mental health court that explicitly accepts juveniles with autism, but there are, to the best of our knowledge, no courts set up specifically for these two discrete sets of populations.

If mental health courts (or any other sort of problem-solving courts) are to work effectively, they must operate in accordance with therapeutic jurisprudence principles, concluding that law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and when consistent with other values served by law should attempt to bring about healing and wellness.

Continue reading

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Traffic Courts Justin Weinstein-Tull Arizona State University College of Law Date Posted: 18 Jun 2023	159
2.	Race, Entrapment and Manufacturing 'Homegrown Terrorism' Sahar F. Aziz Rutgers Law School Date Posted: 08 Jun 2023	133
3.	The Abortion Double Bind Dov Fox University of San Diego: School of Law Date Posted: 21 Jun 2023 [7th last week]	55
4.	Conflict of Abortion Laws Joseph William Singer Harvard Law School Date Posted: 18 Jul 2023 [new to top ten]	53
5.	“Blameworthiness” and “Culpability” Are Not Synonymous: A Sympathetic Amendment to Simester Mitchell N. Berman University of Pennsylvania Carey Law School Date Posted: 22 Jun 2023 [6th last week]	51
6.	Policing Protest: Speech, Space, Crime, and the Jury Jenny E. Carroll University of Alabama - School of Law Date Posted: 08 Jul 2023 [new to top ten]	43
7.	EXTRATERRITORIAL STATE CRIMINAL LAW, POST- DOBBS Darryl K. Brown University of Virginia School of Law Date Posted: 05 Jul 2023 [new to top ten]	35
8.	Restorative Justice as a Democratic Practice Daniel McConkie Northern Illinois University - College of Law Date Posted: 25 May 2023 [new to top ten]	33
9.	Evidentiary Graded Punishment: A New Look at Criminal Liability for Failing to Report Criminal Activity Doron Teichman Hebrew University of Jerusalem - Faculty of Law Date Posted: 22 May 2023 [10th last week]	31
10.	On The Media’s Failure To Understand Self-Defense Law Basics T. Markus Funk PhD University of Colorado School of Law Date Posted: 01 Jun 2023 [9th last week]	31

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Plea Bargaining Abolitionism: A History William Ortman Wayne State University School of Law Date Posted: 25 May 2023	164
2.	The Brady Database Brandon L. Garrett, Adam M. Gershowitz and Jennifer Teitcher Duke University School of Law, William & Mary Law School and Duke University School of Law Date Posted: 16 Jun 2023	162
3.	Criminal Courteaucracy Evelyn Malavé Hofstra University - Maurice A. Deane School of Law Date Posted: 06 Jun 2023	107
4.	Prosecutorial Mutiny Cynthia Godsoe and Maybell Romero Brooklyn Law School and Tulane University Law School Date Posted: 30 Jun 2023 [new to top ten]	96
5.	End-Running Warrants: Purchasing Data under the Fourth Amendment and the State Action Problem Aaron Sobel Yale Law School Date Posted: 25 Jun 2023 [7th last week]	84
6.	Black Lives Monitored Chaz Arnett University of Maryland Francis King Carey School of Law Date Posted: 10 Jul 2023 [new to top ten]	81
7.	Plea Bargaining as Second-Best Criminal Adjudication and the Future of Criminal Procedure Thought in Global Perspective Maximo Langer University of California, Los Angeles (UCLA) - School of Law Date Posted: 05 Jun 2023 [8th last week]	67
8.	Big Data Searches and the Future of Criminal Procedure Mary D. Fan University of Washington School of Law Date Posted: 26 Jun 2023 [9th last week]	52
9.	Collusive Prosecution Ben A. McJunkin and J.J. Prescott Arizona State University (ASU) - Sandra Day O'Connor College of Law and University of Michigan Law School Date Posted: 30 May 2023 [10th last week]	48
10.	Plea Bargaining in the Virtual Courtroom Thea Johnson Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 15 Jun 2023 [new to top ten]	42

Lageson & Stewart on The Problem with Criminal Records

Sarah Lageson and Robert Stewart (Rutgers, The State University of New Jersey - School of Criminal Justice and University of Maryland) have posted The Problem with Criminal Records: Discrepancies Between State Reports and Private Sector Background Checks on SSRN. Here is the abstract:

 

Criminal records are routinely used by employers and other institutional decision-makers who rely on their presumed fidelity to evaluate applicants. We analyze criminal records for a sample of 101 people, comparing official state reports, two sources of private sector background checks (one regulated and one unregulated by federal law), and qualitative interviews. Based on our analysis, private sector background checks are laden with false positive and false negative errors: 60% and 50% of participants had at least one false positive error on their regulated and unregulated background checks, and nearly all (90% and 92% of participants, respectively) had at least one false negative error. We define specific problems with private sector criminal records: mismatched data that create false negatives, missing case dispositions that create incomplete and misleading criminal records, and incorrect data that create false positives. Accompanying qualitative interviews show how errors in background checks limit access to social opportunities ranging from employment, education, and housing and violate basic principles of fairness in the legal system.

Eaglin on Racializing Algorithms

Jessica Eaglin (Cornell Law School) has posted Racializing Algorithms (California Law Review, Vol. 111, No. 753, 2022) on SSRN. Here is the abstract:

 

There is widespread recognition that algorithms in criminal law’s administration can impose negative racial and social effects. Scholars tend to offer two ways to address this concern through law—tinkering around the tools or abolishing the tools through law and policy. This Article contends that these paradigmatic interventions, though they may center racial disparities, legitimate the way race functions to structure society through the intersection of technology and law. In adopting a theoretical lens centered on racism and the law, it reveals deeply embedded social assumptions about race that propel algorithms as criminal legal reform in response to mass incarceration. It further explains how these same assumptions normalize the socially and historically contingent process of producing race and racial hierarchy in society through law. Normatively, this Article rejects the notion that tinkering around or facilitating the abolition of algorithms present the only viable solutions in law. Rather, it calls upon legal scholars to consider directly how to use the law to challenge the production of racial hierarchy at the intersection of technology and society. This Article proposes shifting the legal discourse on algorithms as criminal legal reform to critically center racism as an important step in this larger project moving forward.

Yours Truly on Liberty and Accomplice Mens Rea

I've posted my draft on accomplice mens rea, Purpose's Purposes: Culpability, Liberty, Legal Wrongs, and Accomplice Mens Rea, on SSRN. Don't be fooled by the formatting--plenty of time to be improved by your comments (send to kcole(at)sandiego.edu). Here's the abstract:

The federal mens rea for accomplice liability—important in its own right and also as an example to the states—is unsettled. Three cases from the just completed Supreme Court term hint (somewhat surprisingly) at various directions the justices might take. This essay examines the cases with a particular focus on the alternative explanations that might be given for the traditional requirement of purposeful facilitation for accomplice liability. The purpose requirement is contestable so long as it is justified in terms of a narrow conception of culpability. It is better understood as serving a liberty-enhancing function. The liberty focus clarifies difficult questions regarding the elements of an offense for which purpose should be required and, to a degree, validates the legal-wrong approach to mens rea. It also illuminates the common problem of when an actor who purposely facilitates one crime should be liable for a different crime committed by the principal.

Hessick on Pitfalls of Progressive Prosecution

Carissa Byrne Hessick (University of North Carolina School of Law) has posted Pitfalls of Progressive Prosecution (Fordham Urban Law Journal, Vol. 50, No. ?, forthcoming 2023) on SSRN. Here is the abstract:

 

So-called progressive prosecutors have come under attack, in part, due to two pitfalls associated with the progressive prosecution movement. First, in styling themselves as substantively different than other prosecutors, progressive prosecutors may have obscured the extent to which they are relying on otherwise well-worn and well-accepted prosecutorial tools. Second, in arguing that the root-causes of crime are best addressed through means other than criminal prosecutions, prosecutors have portrayed themselves as unable to take action when crime rates increase. This article identifies the national political "brand" of progressive prosecution, discusses the two features of that brand that leave prosecutors particularly vulnerable to political attack, and offers suggestions for how to tweak the progressive prosecutor brand to better avoid these pitfalls.

"US states get tough with ‘war on drugs’-era laws to tackle fentanyl crisis"

From The Guardian, via NACDL's news update:

Dozens of states have introduced tougher laws in recent months in a desperate attempt to hold back the tide of a drug claiming nearly 200 lives a day that is the leading cause of deaths among American adults under the age of 45.

Other states are dusting off old statutes permitting them to charge drug suppliers with murder, including users such as a 17-year-old in Tennessee after she overdosed with two classmates while taking fentanyl-laced cocaine. They died but she survived and was charged with killing her friends.

 

Virginia has gone further by classifying illegally produced fentanyl as a “weapon of terrorism” alongside bombs, biological agents and radioactive devices in a move to increase prison sentences for dealers. Attorneys general of 18 states are pressing President Joe Biden to declare fentanyl a weapon of mass destruction, saying that in a single month US customs seized enough of the drug to kill every American.

Harris et al. on The Prison Bust

Jacob Harris, Kaitlyn Sims, John Eason, Louis Chuang, Victoria Ylizaliturri, Isabel Anadon, and Erin Eife (Cornell University, University of Denver - Josef Korbel School of International Studies, Brown University - Watson Institute for International and Public Affairs, Cornell University - Department of Government, University of Wisconsin - Madison - Department of Political Science, State University of New York (SUNY) - University at Buffalo, Department of Sociology and Brown University - Watson Institute for International and Public Affairs) have posted The Prison Bust: Declining Carceral Capacity in an Era of Mass Incarceration on SSRN. Here is the abstract:

 

While there is a growing literature investigating the causes and consequences of the US prison boom—the tripling of prison facilities between 1970 and 2000—much less is known about current patterns of prison closures. We use novel data capturing the universe of prison closures (N=188) from 2000 to 2022 to identify and characterize what we term “the prison bust”—the period since 2000 when prison closures began to climb and eventually eclipse new prison building. We show that the prison bust is, in part, a consequence of development-oriented prison-building policies that aggressively used prisons to stimulate struggling local economies. The bust is primarily concentrated in the counties that pursued prison building most aggressively, reflecting a highly cyclical and reactionary pattern of prison placement and closure. We also show that, relative to counties with at least one prison but no closures, closures are concentrated in metro counties with stronger local economies and multiple prisons. Overall, we highlight the prison bust as an important new era in the history of US punishment and provide a new dataset for investigating its causes and consequences. We conclude by discussing the theoretical and policy implications of these findings.

Fay on Jurisdiction and Federalism in Indian Country

Alexandra Fay (UCLA School of Law) has posted Criminal Jurisdiction and Federalism in Indian Country on SSRN. Here is the abstract:

 

This Article examines criminal jurisdiction in Indian Country to describe tribal status in American federalism. In 2022, Congress and the Supreme Court altered the already byzantine scheme of criminal jurisdiction on tribal land through the Reauthorization of the Violence Against Women Act and Oklahoma v. Castro-Huerta, respectively. By instating both tribal and state jurisdiction over a common class of offenders without any structure for coordinating prosecutions, VAWA and Castro-Huerta have necessitated a new kind of inter-sovereign cooperation — in other words, a federalism problem.

Continue reading

"Florida Supreme Court reprimands judge for conduct during Parkland school shooting trial"

From AP, via NACDL's news update:

The unanimous decision Monday followed a June recommendation from the Judicial Qualifications Commission. That panel had found that Circuit Judge Elizabeth Scherer violated several rules governing judicial conduct during last year’s trial in her actions toward Cruz’s public defenders. The six-month trial ended with Cruz receiving a receiving a life sentence for the 2018 murder of 14 students and three staff members at Marjory Stoneman Douglas High School after the jury could not unanimously agree that he deserved a death sentence.

The 15-member commission found that Scherer “unduly chastised” lead public defender Melisa McNeill and her team, wrongly accused one Cruz attorney of threatening her child, and improperly embraced members of the prosecution in the courtroom after the trial’s conclusion.

Tanczer on Technology-Facilitated Abuse and the Internet of Things

Leonie Tanczer (UCL Computer Science) has posted Technology-Facilitated Abuse and the Internet of Things (IoT): The Implication of Smart, Internet-Connected Devices on Domestic Violence and Abuse (Technology and Domestic and Family Violence. Routledge, 2023. 76-87) on SSRN. Here is the abstract:

 

The so-called ‘internet of things’ or ‘IoT’ is an umbrella term for various emerging technologies that have begun to populate our homes, offices, and public/private infrastructure. IoT describes physical and digital systems – often devices that were previously ‘offline’ and therefore analogue – which are now network-capable and can, thus, be connected to each other via the internet. The possibilities that arise from linking devices and the resulting data collection explain why IoT products are commonly associated with the term ‘smart’. This chapter examines the effects these ‘smart’ systems have on people experiencing domestic violence and abuse. The chapter reflects on the current state of the technology-enabled abuse literature and draws insights from an ongoing research project at University College London. After a description of the potential socio-technical risks that arise from IoT devices, feasible interventions are discussed.

Singer on Conflict of Abortion Laws

Joseph William Singer (Harvard Law School) has posted Conflict of Abortion Laws (Northeastern University Law Review, Vol. 16, No. 2 (2024, Forthcoming)) on SSRN. Here is the abstract:

 

When a resident of an anti-abortion state goes to a prochoice state to get an abortion, which law applies to that person? To the abortion provider? To anyone who helps them obtain the abortion? Since Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, states have passed conflicting laws regarding abortion, and courts will need to determine whether anti-abortion states can apply their laws to persons or events outside their territory either through civil lawsuits or criminal prosecution. This article canvasses the major disputes likely to arise over conflicts of abortion law and the arguments on both sides in those cases. It addresses both common law analysis and the constitutional constraints on application of state law under the Full Faith and Credit Clause and the Due Process Clause, and it comes to some conclusions both about what laws should apply in different fact settings and how the choice of law analysis should proceed.

Continue reading

Yeager on Legal and Illegal Arrests

Daniel B. Yeager (California Western School of Law) has posted Arrests: Legal and Illegal (Georgia State University Law Review, Vol. 40, 2024) on SSRN. Here is the abstract:

 

The Fourth Amendment prohibits unreasonable searches and seizures. An arrest – manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing – is a mode of seizure. Because arrests are so intrusive, they require roughly a .5 chance that an arrestable offense has occurred. Because non-arrest seizures (aka Terry stops) are less intrusive than arrests, they, though no “petty indignity,” require roughly just a .25 chance that crime is afoot.

Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it does not always follow, at least not in the Supreme Court. Instead, the Court has ruled some arrests illegal despite the presence of probable cause, the Court’s concern there being with where the arrest took place. Specifically, the Court has ruled repeatedly that an otherwise legal arrest is illegal when performed in a residence that police illegally have entered.

Continue reading

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Traffic Courts Justin Weinstein-Tull Arizona State University College of Law Date Posted: 18 Jun 2023 [2nd last week]	154
2.	Race, Entrapment and Manufacturing 'Homegrown Terrorism' Sahar F. Aziz Rutgers Law School Date Posted: 08 Jun 2023 [3rd last week]	128
3.	The Complicit Canon of Criminal Law: A Critical Survey of Syllabi, Casebooks, and Supplemental Materials Robin Peterson University of Michigan Law School - JD Candidate Author Date Posted: 19 May 2023 [4th last week]	89
4.	Sharma: The Erasure of Both Group-Based Disadvantage and Individual Impact Jonnette Watson Hamilton and Jennifer Koshan University of Calgary - Faculty of Law and University of Calgary - Faculty of Law Date Posted: 06 Jul 2023 [new to top ten]	66
5.	Elements of Blameworthiness in the Law of Homicide: Harmfulness, Wrongness, and Culpability Stuart P. Green Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 23 May 2023 [8th last week]	46
6.	“Blameworthiness” and “Culpability” Are Not Synonymous: A Sympathetic Amendment to Simester Mitchell N. Berman University of Pennsylvania Carey Law School Date Posted: 22 Jun 2023 [9th last week]	45
7.	The Abortion Double Bind Dov Fox University of San Diego: School of Law Date Posted: 21 Jun 2023 [new to top ten]	41
8.	Cybercrime Awareness on Social Media: A Comparison Study Wisdom Umeugo University of the Cumberlands (formerly Cumberland College), Students Date Posted: 18 May 2023 [10th last week]	38
9.	On The Media’s Failure To Understand Self-Defense Law Basics T. Markus Funk PhD University of Colorado School of Law Date Posted: 01 Jun 2023 [new to top ten]	29
10.	Evidentiary Graded Punishment: A New Look at Criminal Liability for Failing to Report Criminal Activity Doron Teichman Hebrew University of Jerusalem - Faculty of Law Date Posted: 22 May 2023 [new to top ten]	29

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Plea Bargaining Abolitionism: A History William Ortman Wayne State University School of Law Date Posted: 25 May 2023 [2nd last week]	159
2.	The Brady Database Brandon L. Garrett, Adam M. Gershowitz and Jennifer Teitcher Duke University School of Law, William & Mary Law School and Duke University School of Law Date Posted: 16 Jun 2023 [3rd last week]	147
3.	Criminal Courteaucracy Evelyn Malavé Hofstra University - Maurice A. Deane School of Law Date Posted: 06 Jun 2023 [4th last week]	102
4.	Criminal Procedure: Constitutional Limits on Policing (Excerpt) Jeffrey Bellin and Adam M. Gershowitz William & Mary Law School and William & Mary Law School Date Posted: 19 May 2023 [5th last week]	88
5.	When Doctors Become Cops Teneille R. Brown University of Utah - S.J. Quinney College of Law Date Posted: 22 May 2023 [7th last week]	73
6.	The Fourth Amendment's Constitutional Home Gerald S. Dickinson University of Pittsburgh - School of Law Date Posted: 23 May 2023	73
7.	End-Running Warrants: Purchasing Data under the Fourth Amendment and the State Action Problem Aaron Sobel Yale Law School Date Posted: 25 Jun 2023 [new to top ten]	69
8.	Plea Bargaining as Second-Best Criminal Adjudication and the Future of Criminal Procedure Thought in Global Perspective Maximo Langer University of California, Los Angeles (UCLA) - School of Law Date Posted: 05 Jun 2023	57
9.	Big Data Searches and the Future of Criminal Procedure Mary D. Fan University of Washington School of Law Date Posted: 26 Jun 2023 [new to top ten]	44
10.	Collusive Prosecution Ben A. McJunkin and J.J. Prescott Arizona State University (ASU) - Sandra Day O'Connor College of Law and University of Michigan Law School Date Posted: 30 May 2023	44

"Obstruction Law Cited by Prosecutors in Trump Case Has Drawn Challenges"

From The New York Times:

In April, the U.S. Court of Appeals for the District of Columbia upheld the use of the obstruction count, even while acknowledging that it had never been applied in quite the way it had been in the Jan. 6 cases.

The decision by the three-judge panel — which included two Trump appointees — largely homed in on just one of the complaints against the statute. The panel said that any obstruction committed by rioters at the Capitol did not have to relate exclusively to the law’s original prohibitions against tampering with witnesses or destroying documents.

But the panel reserved judgment on a separate challenge to the law, one involving the definition of the word “corruptly.” That issue could relate more directly to Mr. Trump, should he be charged with the count.

. . . 

[L]ast week, a senior federal judge in Washington, Royce C. Lamberth, found a high-profile Jan. 6 rioter guilty of the obstruction count despite the defendant’s repeated claims that he believed the election had been stolen.

“Even if Mr. Hostetter genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing,” Judge Lamberth wrote. “Belief that your actions are serving a greater good does not negate consciousness of wrongdoing.”

Zamouri on Women Who Kill Abusive Intimate Partners

Ines Zamouri (United Nations - Entity for Gender Equality and the Empowerment of Women (UN Women)) has posted Self-Defense, Responsibility, and Punishment: Rethinking the Criminalization of Women Who Kill Their Abusive Intimate Partners (30(1) UCLA Journal of Gender and Law 203-270 (2023)) on SSRN. Here is the abstract:

 

In the United States, as many as ninety percent of the women in prison for killing men had previously been battered by those same men. Does the criminalization of battered women adequately account for their status as a victim of violence themselves? What legal practices and assumptions transform a woman from a wife or girlfriend, victim of abuse, to a defendant, guilty of murder?