CrimProf Blog

Brady & Stern on Trespass to Chattels and the Fourth Amendment

Maureen E. Brady and James Y. Stern (Harvard Law School and William & Mary Law School) have posted Analog Analogies: Intel v. Hamidi and the Future of Trespass to Chattels (J. Tort Law (Forthcoming)) on SSRN. Here is the abstract:

 

A symposium on great torts cases of the twenty-first century must include Intel Corp. v. Hamidi, the canonical case about whether unwanted e-mail spam sent to a company’s server could give rise to a trespass to chattels claim. While much has been written about Intel, in this Essay, we argue that Intel is as much of a classic for what it reveals about the old-fashioned tort as it is for its more closely examined ruling on “cybertrespass.”

The dueling personal property analogies chosen by the majority and dissenting opinions in Intel reveal basic and fundamental disagreements about what sorts of conduct the traditional tort prohibits: specifically, when a plaintiff may obtain nominal damages or an injunction against a defendant’s contact with personal property when that contact does not have lasting physical effects. As we point out, this question arose in cases long before Intel and generated some discussion during the drafting of the First and Second Restatements of Torts. Now, the same question arises in Fourth Amendment law and the law of Article III standing, areas in which recent Supreme Court decisions have elevated trespass-to-chattels analyses to renewed significance. Our Essay indicates the need for further development on open questions in the law of trespass to chattels, suggesting some ways that central tort-law notions like intentionality and custom might provide firmer bases for recognizing the harm in unwanted contact with things.

Macleod on Evidence Law and Juror Bias

James Macleod (Brooklyn Law School) has posted Evidence Law's Blind Spots (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Evidence law is about information disclosure: what should we tell the jury, and what should we hide from it? Under the narrow, traditional vision of evidence law, judges consider whether providing the jury a given piece of information would “unfairly prejudice” a party, preventing a “just determination” of the case at hand. But this narrow vision of evidence law overlooks two important things: first, the effects of *failing* to provide the jury information, including the possibility that jurors’ biases will fill in the gaps; and second, it overlooks injustices that extend beyond the parties in the case at hand. These are evidence law’s blind spots: biased gap-filling, and systemic injustice. This Article’s first contribution is to identify them.

The Article’s second contribution is to demonstrate them empirically.To do so, the Article reports the first empirical study of the relationship between defendant race and prior conviction evidence.

Continue reading

Condon on #MeToo in Prison

Jenny-Brooke Condon (Seton Hall Law School) has posted #MeToo in Prison (Washington Law Review, Vol. 98, No. 2, 2023) on SSRN. Here is the abstract:

 

For American women and nonbinary people held in women’s prisons, sexual violence by state actors is, and has always been, part of imprisonment. For centuries within American women’s prisons, state actors have assaulted, traumatized, and subordinated the vulnerable people held there. Twenty years after passage of the Prison Rape Elimination Act (PREA), women who are incarcerated still face shocking levels of sexual abuse, harassment, and violence notwithstanding the law and policies that purport to address this harm. These conditions often persist despite officer firings, criminal prosecutions, and civil liability, and remain prevalent even during a #MeToo era that beckons greater intolerance for sexual harassment and abuse outside of prison. Just as #MeToo helped expose the systemic gender injustice that sustains abuse in the workplace and other areas of public life, the intractability of the sexual abuse crisis for incarcerated women demands recognition of the inequality and power imbalance at its root.

Continue reading

Scurich & Krauss on Risk Assessment of Child Pornography-Exclusive Offenders

Nicholas Scurich and Daniel A. Krauss (University of California, Irvine and Claremont McKenna College - Department of Psychology) have posted Risk Assessment of Child Pornography-Exclusive Offenders (Law and Human Behavior, Vol. 47, Issue 4, Forthcoming) on SSRN. Here is the abstract:

 

Objectives: A sizeable percentage of federally-sentenced child pornography offenders have no history of other criminal offenses (hereinafter “child pornography-exclusive offenders”). There is a critical legal need to assess the recidivism risk of this population. The Child Pornography Risk Tool (CPORT) is a commonly-used actuarial risk assessment instrument developed specifically to assess the risk of child pornography offenders.

Hypotheses: It was hypothesized that there would be a sound scientific basis supporting the use of the CPORT in the United States as well as research demonstrating its applicability to child pornography-exclusive offenders, given that the instrument is currently being used in forensic settings.

Method: This article critically examines all of the existing empirical studies that constitute the research base of the CPORT.

Continue reading

Chan on Singapore's Discretionary Death Penalty for Drug Traffickers

Wing Cheong Chan (Singapore Management University - Yong Pung How School of Law) has posted Escape from the Hangman's Noose? Singapore's Discretionary Death Penalty for Drug Traffickers (Australian Journal of Asian Law, Vol. 24, No. 1, Article 7: 83-94, 2023) on SSRN. Here is the abstract:

 

After nearly fifty years of the mandatory death penalty for drug offences, Singapore amended its law in 2012 to give judges a choice in certain situations to impose a sentence of death or life imprisonment instead. However, this change should not be misunderstood as an alteration in Singapore’s zero-tolerance approach towards illegal drugs. Escaping the mandatory death penalty regime under the new law requires fulfilment of strict conditions. This article reviews the exceptional circumstances that are required before judges are given the discretion to impose the death penalty or not and the application of the new law by the Singapore courts.

Moody & Lott on The Effect of Concealed Carry Laws on Murder

Carlisle E. Moody and John R. Lott (College of William and Mary - Department of Economics and Crime Prevention Research Center) have posted Estimating the Effect of Concealed Carry Laws on Murder: A Response to Bondy, et al on SSRN. Here is the abstract:

 

In response to our short paper in Academia Letters, Bondy et. al. published much longer response in this journal. We show that the Bondy et. al. criticisms are misleading and irrelevant. We present new estimates of the effect of right-to-carry and permit-less “constitutional carry” laws on the murder rate. We find that the traditional two-way fixed-effects analysis shows that right-to-carry laws have a negative but only marginally significant effect and that constitutional carry laws have an insignificantly negative effect. We also apply new difference-in-differences analyses to the same data and find that both laws have a negative but insignificant effect on murder. We conclude that, although the standard errors indicate that these coefficients are not precisely estimated, it cannot be claimed that either one of these laws significantly increases murder.

Dylan on Human Incarceration and Animal Captivity

Daniel Dylan (Lakehead University - Bora Laskin Faculty of Law) has posted Book Review of 'Carceral Logics: Human Incarceration and Animal Captivity' (Journal of International Wildlife Law & Policy 2023) on SSRN. Here is the abstract:

 

In Carceral Logics: Human Incarceration and Animal Captivity (Carceral Logics), an Open Access book available on Cambridge Core, editors Lori Gruen and Justin Marceau (each of whom has also contributed a chapter in the volume) deftly assemble a vast array of eminent scholars. This scholarship develops multiple theses respecting the relationships that human animals (humans) and nonhuman animals (animals) share with a legal system that mostly avows criminal incarceration as the apex of vital social, political and legal policing policy. The editors’ introduction is, from the start, bold and compelling and reveals their undeniable argument and conclusion that the United States operates in a realm of dissonance that recognizes, in the abstract, the dysfunction and cruelty of the carceral system, but that also endorses incarceration in aid of the social goals it supports (p 3). As it relates to animals, the scholarship in this book affirms the enduring zeitgeist of American society that policing, prosecution, and incarceration appropriately convey social condemnation of human acts that impose suffering on animals (p 4).

Schembri on Geofencing Warrants

Tyler Schembri has posted The Rise of Technology and Its Effect on Search and Seizure Analysis: The Constitutionality of Geofencing Warrants Under the Supreme Court’s Fourth Amendment Jurisprudence (South Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:

Geofencing warrants submitted to Google have raised significant constitutional concerns, presenting complex legal questions for lower courts to grapple with. This article provides clarity by explaining the purpose of geofencing warrants and their role in assisting law enforcement through Google's 3-Step process. It summarizes relevant U.S. District Court opinions and critically examines the applicability of the Supreme Court's third-party doctrine, which has implications for both historic and modern technology, to geofencing warrants. Furthermore, it analyzes geofencing warrants under the Fourth Amendment's particularity requirement while examining both originalist and non-originalist methods of interpretation to reach its conclusions.

In addition, the article addresses potential privacy concerns and identifies narrow circumstances in which geofencing warrants, as currently structured by Google, may comply with the Fourth Amendment. This comprehensive analysis serves as a valuable resource for legal scholars, practitioners, and policymakers grappling with the evolving landscape of geofencing warrants and constitutional law, providing insights for further developments in this area.

Evans on Carceral Socialization as Voter Suppression

Danieli Evans (Seattle University School of Law) has posted Carceral Socialization as Voter Suppression (Michigan Journal of Race & Law, Vol. 28, No. 1, 2023) on SSRN. Here is the abstract:

 

In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are powerful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples’ sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to participate in politics. Hence, the carceral system’s impact on political participation goes well beyond those who are formally disenfranchised due to convictions. It also suppresses participation among the millions of legally eligible voters who have not been formally disenfranchised—people who have had more fleeting encounters with law enforcement or vicarious interactions with the carceral system.

Continue reading

Addey & Chobbah on Capital Punishment

Mark Addey and Kirk Matthew Chobbah (University of Professional Studies, Accra (UPSA) and University of Professional Studies, Accra (UPSA) - University of Professional Studies, UPSA Law School) have posted Decoding the Choice: Investigating the Factors Behind the Continued Use of Capital Punishment in Some Nations on SSRN. Here is the abstract:

 

Capital punishment, a contentious and polarizing practice, continues to be employed by certain nations despite widespread global trends toward its abolition. This research endeavors to unravel the intricate tapestry of influences that underlie the persistence of capital punishment in these select countries. Employing a comprehensive and interdisciplinary approach, this study delves into legal, social, cultural, political, and economic factors that contribute to the sustained utilization of this ultimate form of punishment. This paper discusses 5 main reasons why some countries still have capital punishment in their penal code.

Genovese on Trans People in Australian Criminal Courts

Emma Genovese (University of Technology Sydney) has posted Administering Harm: The Treatment of Trans People in Australian Criminal Courts (Current Issues in Criminal Justice) on SSRN. Here is the abstract:

 

In this paper, I argue that the administration of the criminal law by Australian courts causes harm to trans people that compounds with that already experienced. Specifically, court staff and judicial officers can maintain harm when they engage with court forms and provide judicial judgments: court forms that limit descriptions of sex/gender prevent self-identification and increase the potential for misgendering; further, judicial judgments often disregard, dismiss or deny the experiences of trans people through including inappropriate gendered terminology, deadnames and other problematic expressions. I conclude by highlighting three transformations that may disrupt these harms through allowing court staff and judicial officers to become aware of how they perpetuate harm against trans people. These transformations include reviewing and amending forms, educating and training staff and implementing additional supports. Importantly, to effectively disrupt harm, any transformation must be informed, and led, by trans people with lived, intersectional, experiences.

Diamantis on Victims of Corporate Crime

Mihailis Diamantis (University of Iowa - College of Law) has posted What Do We Owe the Victims of Corporate Crime? (Corporate Crime: The Firm as Victim and Offender (Miranda a. Galvin & William S. Laufer, Eds., Forthcoming) on SSRN. Here is the abstract:

 

A casual observer would be excused for thinking that corporate crimes are generally victimless. Even an informed observer would be hard pressed to articulate how, if at all, the criminal justice system accounts for victims when it resolves cases against corporations. When prosecutors focus on big-sticker fines and compliance mandates, victims drop out of the equation. Sometimes, prosecutors even take steps to actively exclude victims. This vague impression about the absence of victim participation in corporate criminal justice is empirically verifiable. Drawing on an original, hand-collected data set of corporate criminal resolutions to investigations, I argue that the most striking thing about corporations’ victims is how little we know about them.

Continue reading

Gordon on Prison Abolition Without the Ethic

Jacob Gordon has posted Prison Abolition Without the Ethic on SSRN. Here is the abstract:

Prison abolitionists stand for an “ethic.” The ethic rejects punishment of all kinds, as well as capitalism broadly understood. By focusing on their ethic, abolitionists mask strong arguments for prison abolition -- or at least something like it -- from within more common commitments. The ethic therefore undermines actual abolition in the name of a distinct and contestable set of theories.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The 'New' Drug War Jennifer D. Oliva and Taleed El-Sabawi Indiana University Maurer School of Law and Florida International University (FIU) - College of Law Date Posted: 14 Aug 2023	434
2.	Gang Violence and Just War Theory Jacob Gordon Harvard Law School Date Posted: 15 Aug 2023 [4th last week]	338
3.	Conflict of Abortion Laws Joseph William Singer Harvard Law School Date Posted: 18 Jul 2023	110
4.	Role-Reversibility, AI, and Equitable Justice — Or: Why Mercy Cannot Be Automated Stephen E. Henderson and Kiel Brennan-Marquez University of Oklahoma - College of Law and University of Connecticut - School of Law Date Posted: 10 Jul 2023 [6th last week]	74
5.	The Abortion Double Bind Dov Fox University of San Diego: School of Law Date Posted: 21 Jun 2023	72
6.	Extraterritorial State Criminal Law, Post- DOBBS Darryl K. Brown University of Virginia School of Law Date Posted: 05 Jul 2023 [7th last week]	71
7.	Policing Protest: Speech, Space, Crime, and the Jury Jenny E. Carroll University of Alabama - School of Law Date Posted: 08 Jul 2023 [9th last week]	62
8.	Purpose's Purposes: Culpability, Liberty, Legal Wrongs, and Accomplice Mens Rea Kevin Cole University of San Diego School of Law Date Posted: 29 Jul 2023 [10th last week]	53
9.	Harmonising Sexual Consent Law in Australia: Goals, Risks and Challenges Guzyal Hill and Jonathan Crowe Charles Darwin University and Bond University - School of Law Date Posted: 21 Jun 2023 [new to top ten]	45
10.	Actions, Agents, and Consequences Re'em Segev Hebrew University of Jerusalem – Faculty of Law Date Posted: 09 Aug 2023 [new to top ten]	41

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	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	215
2.	Progressive Façade: How Bail Reforms Expose the Limitations of the Progressive Prosecutor Movement Sarah Gottlieb University of Baltimore School of Law Date Posted: 09 Aug 2023	212
3.	Pitfalls of Progressive Prosecution Carissa Byrne Hessick University of North Carolina School of Law Date Posted: 20 Jul 2023 [4th last week]	130
4.	Criminal Jurisdiction in Indian Country: A Federalism Problem Alexandra Fay UCLA School of Law Date Posted: 20 Jul 2023 [3rd last week]	129
5.	Monotonicity among Judges: Evidence from Judicial Panels and Consequences for Judge IV Designs Henrik Sigstad BI Norwegian Business School Date Posted: 09 Aug 2023 [5th last week]	119
6.	End-Running Warrants: Purchasing Data under the Fourth Amendment and the State Action Problem Aaron Sobel Yale Law School Date Posted: 25 Jun 2023	113
7.	Prosecutorial Mutiny Cynthia Godsoe and Maybell Romero Brooklyn Law School and Tulane University Law School Date Posted: 30 Jun 2023	108
8.	Black Lives Monitored Chaz Arnett University of Maryland Francis King Carey School of Law Date Posted: 10 Jul 2023	103
9.	An Even Better Way Joanna C. Schwartz University of California, Los Angeles (UCLA) - School of Law Date Posted: 24 Jul 2023	96
10.	“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 Michael L. Perlin, Heather Cucolo and Deborah Dorfman New York Law School, New York Law School and Disability Rights Connecticut Date Posted: 22 Jul 2023	96

Davis & Mavisakalyan on Determinants of Legalized Prostitution

Lewis Davis and Astghik Mavisakalyan (Union College - Department of Economics and Curtin University - Centre for Research in Applied Economics) have posted Individualism and the Legal Status of Prostitution on SSRN. Here is the abstract:

 

We know very little about why the legal status of prostitution varies across countries. We address this lacuna, providing empirical evidence on the determinants of legal prostitution in a panel of 60 countries. We consider three hypotheses derived from the normative debate over legal prostitution, including the claims that legal prostitution should be related to individualism, patriarchy, and the economic status of women. Consistent with the normative literature, we find a robust positive relationship between individualism and legal prostitution. Prostitution is also more likely to be legal in countries in which women enjoy greater economic status. However, we fail to find a consistent relationship between measures of historical patriarchy and legal prostitution. The ambiguous empirical relationship between patriarchy and legal prostitution mirrors the contested nature of claims about patriarchy in the normative literature on the legalization of prostitution. Finally, we find that individualism matters more for legal prostitution in democratic countries.

Woody on Corporate Crime and Cooperation

Karen E. Woody (Washington & Lee University School of Law) has posted Corporate Crime and Cooperation on SSRN. Here is the abstract:

 

Over the past few decades, the Department of Justice (DOJ) has regularly issued guidance about how companies could or should assist the government in reaching a resolution to a corporate criminal investigation. Among the white collar bar, it is a given that a company will cooperate with the DOJ in order to receive the best outcome and settlement. What “cooperation” entails, however, has differed over the past few decades. The reason companies cooperate is to be afforded the “carrot” of cooperation credit, rather than face the the “stick” of increased fines and punishment. Cooperation credit is a major factor in corporations’ decisions regarding all aspects of their own internal investigations, including whether or not to voluntary disclose potential violations of the FCPA or other criminal conduct, what documents to produce to the government and when, and whether to allow the government to interview (and potentially indict) executives.

Continue reading

Weisselberg on Defense Lawyering

Charles D. Weisselberg (University of California, Berkeley - School of Law) has posted Look Forward, Not Back: A Perspective on Defense Lawyering in the United States (Forthcoming in Poor Defence Lawyering: A Comparative View (Panzavolta, M. & Sanders, A. eds., 2023)) on SSRN. Here is the abstract:

 

The United States has 52 criminal legal systems, not just one. Each of the states has its own, in addition to the federal government and the District of Columbia. Despite sharing the same basic structure, there are significant differences in practices, procedures, and funding between these systems, and even within them. Given this variance, it is tempting to look to constitutional principles — which apply nationwide — to address poor lawyering. The Sixth Amendment to the U.S. Constitution provides the right to counsel, which includes the right to effective assistance of counsel. But as the chapter explains, the Constitution sets such a low bar for lawyering as to be largely irrelevant. Our test for ineffective assistance, which looks backward and examines counsel’s performance in an individual completed case, has failed to instill professional standards and lift up the quality of defense practice.

If lawyering is to improve in the US, we must look forward, not back. With the lack of a meaningful Constitutional standard, we need to create structures that incentivize quality lawyering, especially for indigent criminal defendants. The chapter describes several models of service delivery, including public defender offices, contracts for services, and appointments in individual cases. As it turns out, public defender offices generally provide better outcomes for their clients, and can also raise the level of practice within a jurisdiction, including among private lawyers. The chapter concludes that the US should move toward this model through legislative and administrative advocacy, jurisdiction-by-jurisdiction.

Kimpel on Alienating Criminal Procedure

Amy Kimpel (University of Alabama - School of Law) has posted Alienating Criminal Procedure (Georgetown Immigration Law Review, Vol. 37, No. 2, 2023) on SSRN. Here is the abstract:

 

The paradigmatic federal criminal case is not the prosecution of Elizabeth Holmes or John Gotti, but rather that of a poor immigrant of color for a low-level border offense. There persists a perception that federal criminal court is reserved for complex crimes that require robust resources to prosecute and defend. These resources are said to fund procedural rigor and afford a dignity to the proceedings that state courts cannot match. If this mythologized federal criminal court ever existed, it no longer does. Immigration cases overwhelm the federal criminal docket, making up more than half of all filed cases. The majority of those recently prosecuted in federal court are noncitizens, most of whom are Latinx. The changed composition of the docket has a profound impact on the operation of the federal criminal courts. Those charged with federal immigration crimes are canaries in the proverbial coal mine, and federal immigration prosecutions are an underexamined driver of the racialized phenomenon of mass incarceration.

Continue reading

Capps on Rethinking Accomplice Liability

Charles F. Capps has posted Rethinking Accomplice Liability on SSRN. Here is the abstract:

In every American jurisdiction, accomplice liability is “derivative” in the sense that the accomplice is punished not for her own acts of aiding or abetting but for the acts of the principal whom she aids or abets. The derivative character of accomplice liability has created problems in cases where the principal and the accomplice have different affirmative defenses or mental states as well as cases where the principal’s conduct is causally efficacious but the accomplice’s is not.

American law has partially corrected for these problems by walking back the extent to which accomplice liability is derivative. Although at common law the accessory’s liability was wholly derivative of the principal’s, now all jurisdictions judge the accomplice by her own affirmative defenses, and some jurisdictions judge the accomplice by her own mens rea. But no jurisdiction has taken the final step of eliminating derivative liability for accomplices altogether and judging the accomplice by her own actus reus.

Continue reading