CrimProf Blog

Elengold on Debt, Work, and the State

Kate Elengold (UNC School of Law) has posted Debt, Work, and the State (109 Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In every state and the District of Columbia, an individual who owes a debt to the state can lose their license to work. Without the ability to make a living, it is much harder to pay off debt. Although using occupational license restrictions as a debt collection tool appears ironic and nonsensical, it has never before been the subject of scholarly debate. This Article begins that important conversation about debt, work, and the state.

This Article identifies and analyzes the pervasive authority that state and local governments have to revoke an individual’s occupational license solely because that person owes a debt to the government. Its first contribution is descriptive—proffering the only existing mapping of state statutes and municipal ordinances that give the government the authority to use occupational licensing restrictions as a debt collection tool. And because this debt collection tool is potent, punitive, and disproportionately affects low-income workers, policymakers must better understand and grapple with its benefits and burdens. Therefore, this Article’s second contribution is conceptual—proposing a new way for how the state should analyze its debt collection actions. It argues that the state must consider more than the cost-benefit analysis a creditor typically employs in a private arms-length transaction. Governments must also consider moral and public interest factors unique to state action. The Article models such an analysis specific to debt-based occupational licensing restrictions. It then concludes with proposals for specific policy changes to better reflect the government’s unique interests in protecting individual debtors, families, and the broader public.

Dore & Worrall on Psychopathic Homicide Offenders

Gaetan Dore and John L Worrall (Coventry University - Health & Life Sciences and University of Texas at Dallas - School of Economic, Political and Policy Sciences) have posted Psychopathic Homicide Offenders: A Summary and Call for Research on SSRN. Here is the abstract:

 

Despite popular enthusiasm for the clinical construct of psychopathy, our current state of knowledge about the condition is surprisingly limited. Even rarer is information at the intersection of psychopathy and homicide offending. Three subcategories of homicide – sexual, sadistic, and serial – stand out because they reach the peak of violence, sadism, and horror, but their association with psychopathic traits has been underresearched. In this essay, we synthesize the literature on the psychopathy-homicide nexus and offer up an agenda for future research.

Parchomovsky & Stein on Redeemable Fines and Overincarceration

Gideon Parchomovsky and Alex Stein (University of Pennsylvania Carey Law School and Israel Supreme Court) have posted Redeemable Fines: Overcoming the Crisis of Overincarceration on SSRN. Here is the abstract:

 

In this Essay, we introduce a new mechanism uniquely designed to achieve rehabilitation of offenders and improve the criminal justice system: the redeemable fine. A redeemable fine is a monetary penalty that will be returned to the offender—in installments or, in exceptional cases, in one payment—over a certain period so long as she or he commits no further crimes. Unlike traditional fines, redeemable fines can be structured in a myriad of ways to provide individually tailored optimal rehabilitative incentives for offenders. First, the installment period of the repayment can be short (several months) or long (several years), depending on the characteristics of the offense and the offender. Second, there is the frequency of the payments. The payment intervals can be long, short, intermediate or variable. The sentencing judge will be able to order that the repayments will be made annually, every six months, every single month or, in exceptional cases, in one installment on the successful completion of the rehabilitation. As with traditional fines, the redeemable fine’s amount will correlate with the seriousness of the offender’s misdeed. For these and other reasons, introduction of redeemable fines can dramatically reduce the rates and the costs of incarceration and render the criminal justice system fairer and more humane, while providing meaningful incentives for offenders not to commit further offenses.

Smith on Bellin on Mass Incarceration

Zack Smith (The Heritage Foundation) has posted The Myth of Mass Incarceration Remains Strong--Despite All Evidence to the Contrary (The Federalist Society Review) on SSRN. Here is the abstract:

 

This is a review of Jeffrey Bellin’s book, Mass Incarceration Nation. As should be obvious from the title of the review, The Myth of Mass Incarceration Remains Strong—Despite All Evidence to the Contrary, Bellin is wrong that the United States suffers from a mass incarceration problem. Mass incarceration is a myth, and this review explains why.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Brain Science for Lawyers, Judges, and Policymakers Owen D. Jones, Jeffrey D. Schall, Francis X. Shen, Morris B. Hoffman and Anthony D. Wagner Vanderbilt University - Law School & Dept. of Biological Sciences, York University, University of Minnesota Law School, Second Judicial District Court Judge, State of Colorado and Stanford University - Department of Psychology Date Posted: 15 Mar 2024	282
2.	The Cultural Gagging of Women Through the Lens of Johnny Depp V. Amber Heard: How Prominent Male Abusers Use Defamation Claims as a Retaliatory Mechanism to Silence Their Victims Blaize Hiatt Indiana University, Robert H. McKinney School of Law Date Posted: 21 Feb 2024 [4th last week]	218
3.	Capital Trifurcation William W. Berry III University of Mississippi School of Law Date Posted: 29 Feb 2024 [2nd last week]	211
4.	Criminal Law Minimalisms Benjamin Levin Washington University in St. Louis - School of Law Date Posted: 19 Mar 2024 [6th last week]	206
5.	Safe-T for Whom? How Legislative Overreach Transformed Criminals into Victims Kevin M. Zielinski Southern Illinois University - Southern Illinois University School of Law Date Posted: 20 Feb 2024 [7th last week]	182
6.	Ad Hoc Constructions of Penal Statutes Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 27 Feb 2024 [8th last week]	170
7.	A Sentiment Analysis on the Resumption of ICC Investigation on the Philippine Drug War Brandon Obenza and Danilo Baradillo University of Mindanao and University of the Immaculate Conception Date Posted: 23 Feb 2024 [new to top ten]	163
8.	Prosecutors in Robes Jacob Schuman The Pennsylvania State University (University Park) – Penn State Law Date Posted: 18 Mar 2024 [9th last week]	162
9.	Police Vigilantism Nadia Banteka Florida State University College of Law Date Posted: 08 Mar 2024 [10th last week]	156
10.	Decentering Property in Fourth Amendment Law Michael Pollack and Matthew Tokson Yeshiva University - Benjamin N. Cardozo School of Law and University of Utah - S.J. Quinney College of Law Date Posted: 18 Feb 2024 [new to top ten]	150

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Artificial Intelligence and Privacy Daniel J. Solove George Washington University Law School Date Posted: 29 Feb 2024	6,759
2.	Brain Science for Lawyers, Judges, and Policymakers Owen D. Jones, Jeffrey D. Schall, Francis X. Shen, Morris B. Hoffman and Anthony D. Wagner Vanderbilt University - Law School & Dept. of Biological Sciences, York University, University of Minnesota Law School, Second Judicial District Court Judge, State of Colorado and Stanford University - Department of Psychology Date Posted: 15 Mar 2024	282
3.	Private Security and Public Police Ben Grunwald, John Rappaport and Michael Berg Duke University School of Law, University of Chicago - Law School and University of Chicago - Law School Date Posted: 20 Mar 2024 [7th last week]	213
4.	Criminal Law Minimalisms Benjamin Levin Washington University in St. Louis - School of Law Date Posted: 19 Mar 2024 [5th last week]	206
5.	Accidental Brady Violations Adam M. Gershowitz William & Mary Law School Date Posted: 11 Mar 2024 [4th last week]	202
6.	The Ominous Sound of Keys: Enabling Sexual Assaults in Prisons Amos N. Guiora, Anna M. Hall and Zev Gorfinkle University of Utah - S.J. Quinney College of Law, University of Utah, S.J. Quinney College of Law, Students and Honors College, University of Utah Date Posted: 05 Mar 2024 [9th last week]	198
7.	Building Rapport in Interviews with Adolescent Trafficking Victims Rachel Dianiska, Emma Simpson, Sarah Kim, Thomas D. Lyon and Jodi Quas University of California, Irvine, University of California, Irvine - Department of Psychological Science, University of California, Irvine - Department of Psychological Science, University of Southern California Gould School of Law and University of California, Irvine - Department of Criminology, Law and Society Date Posted: 01 Mar 2024 [6th last week]	194
8.	Safe-T for Whom? How Legislative Overreach Transformed Criminals into Victims Kevin M. Zielinski Southern Illinois University - Southern Illinois University School of Law Date Posted: 20 Feb 2024	182
9.	Prosecutors in Robes Jacob Schuman The Pennsylvania State University (University Park) – Penn State Law Date Posted: 18 Mar 2024 [10th last week]	162
10.	Police Vigilantism Nadia Banteka Florida State University College of Law Date Posted: 08 Mar 2024 [new to top ten]	156

Jones-Brown et al. on Qualified Immunity

Delores Jones-Brown, Paul Reck, Richard Helfers, and Henry F. Fradella (Howard University, Ramapo College of New Jersey, University of Texas at Tyler and Arizona State University - School of Criminology and Criminal Justice) have posted A Commentary on Qualified Immunity in the Aftermath of City of Tahlequah v. Bond on SSRN. Here is the abstract:

 

This paper examines City of Tahlequah, Oklahoma v. Bond (2021) and its role in a line of cases that make it difficult for plaintiffs to seek civil redress against officers who cause serious injury or death to private citizens. We note that this judicial trend runs counter to public demand for police accountability and thwarts the legislative intent behind the enactment of 42 U.S.C.A. § 1983. We suggest that police practice, policy, standards, and training—not judicial opinions—should govern whether officers will be immune from the consequences of their actions, especially in areas where a substantial amount of empirical evidence exists to alert officers to behaviors that unnecessarily cause serious harm. We suggest that when cases involve any of these specific behaviors known to endanger life, that fact should constitute prima facia evidence that qualified immunity will not apply. In addition, we contend that a proportionality analysis is essential to any consideration of qualified immunity. Under this analysis, cases that involve police contact for low-level, non-violent offenses, but that result in serious injury or death to the private citizen, should presumptively exclude officers from making a qualified immunity claim. In light of the U.S. Supreme Court’s restrictive rulings that we believe unduly favor the police, we conclude by reporting the actions that states have taken to limit the applicability of qualified immunity within their jurisdictions.

Stumpf on Crimmigration and Legitimacy of Immigration Law

Juliet P. Stumpf (Lewis & Clark College - Lewis & Clark Law School) has posted Crimmigration and the Legitimacy of Immigration Law (Arizona Law Review, Vol. 65, No. 113, 2023) on SSRN. Here is the abstract:

 

Crimmigration law—the intersection of immigration and criminal law—with its emphasis on immigration enforcement, has been central in discussions over political compromise on immigration reform. Yet crimmigration law’s singular approach to interior immigration and criminal law enforcement threatens to undermine public faith in the legitimacy of immigration law.

This Article explores the significance of crimmigration for the procedural legitimacy of immigration law. Seminal scholars of psychological jurisprudence have concluded that perceptions about procedural justice—whether the law and legal authorities treat people fairly—are often more important than a favorable outcome, such as winning a case or avoiding arrest. Crimmigration introduces procedural deficiencies into immigration law that may undermine people’s perceptions of its legitimacy. These deficiencies, seen through the lens of psychological jurisprudence, mean that individuals and institutions are less likely to trust immigration law and cooperate with immigration authorities.

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Mauleon on Legal Endearment and Transforming Policing

Emmanuel Mauleón (UCLA School of Law - UCLA School of Law) has posted Legal Endearment: An Unmarked Barrier to Transforming Policing, Public Safety, and Security (California Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The problems of racialized policing have come into renewed focus over the past decade. The advent of viral bystander videos has not only forced a popular confrontation with moments of both routine and extraordinary policing violence, but also sparked protests, uprisings, and grassroots movements to challenge current practices in policing and determine what must be done to transform it. And yet, even after the mobilization of one of the largest racial justice movements in American history, transformative change remains elusive. This Article offers an answer to this puzzle by foregrounding White people’s collective relationship with policing and describing how this relationship colors current debates on how to best address policing’s racial disparities.

The Article asks: “How might we reconcile White people’s articulated commitments to racial equality with their continued acquiescence in and support for a system of policing that continues to produce such stark racial disparities?” I answer with the theory of legal endearment, which suggests that groups who benefit disproportionately from systems of legal power tend to develop critical attachments to the institutions that maintain such unequal arrangements. For White people, policing is one such institution. Their attachment to policing provides at least a partial explanation for why meaningful police reform has been difficult to achieve.

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Swan on The Police No-Duty Rule

Sarah Lynnda Swan (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Public Duties for the New City (Michigan Law Review, Vol. 122, No. 2, 2023) on SSRN. Here is the abstract:

 

The first job of a government is to protect its people, and, in the United States, the government ostensibly performs this job through the police. But policing in America is deeply dysfunctional, as the police not only provide inadequate protection from violent crime, but simultaneously engage in outright acts of brutality against the citizenry. As awareness of these practices has swept across the nation, legal scholars and policymakers have offered numerous reforms and remedies to help solve policing’s problems. The responses have tended to focus on the top of the legal pyramid, using the big hammers of the federal government, the Constitution of the United States, the federal remedies of Section 1983, and the qualified immunity doctrine of federal courts as the requisite tools for reform. More recently, as these efforts have faltered, scholars and policymakers have begun to explore the possibilities for change at the state and local level.

This Article, too, begins at the bottom. While the proposed fixes to the federal framework are indeed important, this Article argues that changes at the lower, foundational level of cities, local governments, and common law duties of care are equally so. Policing is, after all, a fundamentally local matter, with thousands of municipal and county governments responsible for its administration. And duties of care are the most basic articulation of the norms and obligations flowing between members of our society, shaping not just private relations, but the government-constituent relationship as well. This Article argues that attending to these roots offers an opportunity to reorient the police-citizen relationship and recast the relational norms between local government actors and their constituents more generally. In particular, this Article argues that the “public duty doctrine”—a no-duty rule that immunizes municipalities from civil liability arising from police violence and failures to protect—has contributed to a profoundly unbalanced and perverse local-constituent relationship. To reestablish just relations, localities should bear, and indeed embrace, a legally enforceable duty of care to protect their constituents.

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Winders on Cruelty to Farm Animals

Delcianna Winders (Vermont Law School) has posted Beyond The Law? Interrogating The Scope of Common Farming Exemptions on SSRN. Here is the abstract:

 

Most state cruelty-to-animals laws, as well as the recently enacted first-ever federal felony cruelty statute, expressly exempt “accepted,” “common,” “customary,” or “normal” farming practices, collectively referred to as “common farming exemptions.” The conventional wisdom—which animal law scholars and advocates have almost universally adopted—is that exempted common farming practices are whatever the farming industry says that they are, and that the exemptions thus effectively put farmed animals beyond the reach of the law. This paper challenges that conventional wisdom and argues that common farming exemptions do not reach numerous cruel yet routine farming practices—but that that our almost exclusive reliance on criminal, rather than civil regulatory, legal mechanisms has virtually precluded enforcement. The paper concludes by urging an end to a myopic focus on common farming exemptions in favor of a more holistic overhaul.

Harris & Campbell on the UK's Failure-to-Prevent-Bribery Offense

Hannah Harris and Liz Campbell (Macquarie Law School and Monash University - Faculty of Law) have posted Analysing the Impact of the Failure to Prevent Bribery Offence on Corporate Compliance Reporting in the United Kingdom – Towards a Better Model of Corporate Accountability? on SSRN. Here is the abstract:

 

The UK Bribery Act (2010) and its failure to prevent (FtP) model represent a novel approach to corporate accountability that is gaining traction in other issue areas and jurisdictions as a mechanism to incentivise robust corporate compliance policies and thus contribute to the prevention of corporate misconduct. The expansion of the FtP model to tax evasion and fraud in the UK, as well as introduction of a comparable offence of Failure to Prevent Foreign Bribery in Australia, demonstrate that this FtP model is developing into an important feature of the corporate accountability landscape. There have even been suggestions that the FtP model should be expanded beyond financial crime, to address social and environmental harms resulting from transnational business practices, including arguments in favour of a ‘failure to prevent modern slavery’. Despite this, there is limited empirical research documenting the actual impact of the FtP Bribery on corporate behaviour. This article aims to fill this gap in the existing scholarship, establishing a foundation for further empirical research on the impact of the FtP model. While this article focuses on analysis of publicly available documents in the form of annual reports, we envision further research is needed into the impact of the FtP Bribery offence on corporate practices and the decision-making, including gathering the perspectives of compliance professionals, executives, and directors.

Hacker on AI, Remote Biometric Identification, Privacy, Etc.

Philipp Hacker (European University Viadrina Frankfurt (Oder) - European New School of Digital Studies) has posted Comments on the Final Trilogue Version of the AI Act on SSRN. Here is the abstract:

 

This paper provides a comprehensive analysis of the recent EU AI Act, the regulatory framework surrounding Artificial Intelligence (AI), focusing on foundation models, open-source exemptions, remote biometric identification (RBI), copyright, high-risk classification, innovation, and the implications for fundamental rights and employment.

The comments critically examine the regulatory approach to general-purpose AI systems, highlighting the new challenges and critiques regarding the regulation of foundation models, the functioning and limitations of open-source exemptions, and the concerns raised by RBI, especially in terms of privacy, function creep, and enforcement issues. It further delves into the copyright regime affecting AI, the criteria for high-risk classification, and the intersection with innovation, discussing how AI regulation aligns with existing sectoral regulations and impacts the AI value chain. The paper also addresses regulated self-regulation, safe harbors, the fundamental rights impact assessment, the right to an explanation, compliance timelines, and the preparation businesses must undertake to comply with new regulations.

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Coccia et al. on Crime and Immigration in Europe

Mario Coccia, Ellen G. Cohn, and Suman Kakar (National Research Council of Italy (CNR), Florida International University (FIU) and Florida International University (FIU)) have posted Relation between crime and immigration, unemployment and income inequality in European countries: social issues and policy implications (Crime, Law and Social Change, n. 10144) on SSRN. Here is the abstract:

 

The literature about the relation between crime and immigration is vast and results are often contradictory. In this hot debate, the purpose of the study is to analyze relationships between crime and immigration, considering socioeconomic factors, such as unemployment in Europe to clarify some aspects. Results, based on Eurostat data over 2010s, suggest an association between immigration and crime of sexual violence. Instead the variable of income per capita has a negative association with homicides and a positive correlation with sexual violence and theft, Finally unemployment has a positive association with homicides and a negative correlation with sexual violence and theft. Findings are discussed in the context of some theories of the sociology of crime. Policy implications are discussed and suggested to deal this main social issues in Europe.

Harawa on Race and Fourth Amendment Seizures

Daniel Harawa (New York University School of Law) has posted Coloring in the Fourth Amendment (Harvard Law Review, Vol. 137, p. 1533, 2024) on SSRN. Here is the abstract:

 

For decades, a question has simmered in criminal procedure: Can the Fourth Amendment seizure analysis account for a suspect’s race? Scholars have long advocated for courts to consider race when resolving Fourth Amendment questions, but to date, the Supreme Court has not provided a definitive answer.

The question has now bubbled to the surface. With calls for advocates to raise race when litigating Fourth Amendment questions, and with more and more advocates heeding those calls, courts are being asked to contemplate how race factors into deciding whether a person has been seized. When the question is explicitly asked, courts have answered differently, with many refusing to consider race as part of the seizure analysis.

It is easy to think that it is only a matter of time before the Supreme Court holds that race has no place in the Fourth Amendment, especially given its muscular articulation of colorblindness in the recent affirmative action cases. Indeed, the lower courts that have held that race cannot be considered as part of a seizure analysis have couched their decisions in the same rhetoric and reasoning found in the Supreme Court’s colorblind rulings.

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Allen et al. on Rationality, Evidence, and the Criminal Process

Ronald J. Allen, Michael S. Pardo, William J. Lawrence, and Christopher Smiciklas (Northwestern University Pritzker School of Law, Georgetown University Law Center, Sidley Austin LLP and Northwestern University - Pritzker School of Law) have posted Minimal Rationality and the Law of Evidence (Journal of Criminal Law & Criminology, forthcoming) on SSRN. Here is the abstract:

 

For better than a century, one of the pillars upon which the law of evidence was thought to rest is that the primary (although by no means exclusive) objective of the law of evidence is to further accurate fact-finding by maximizing the rationality of the evidentiary process. The crux of this pillar is that the law of evidence increases rationality (and thereby increases accuracy) through admissibility rules that (1) require reliable evidence, and (2) behave paternalistically toward jurors and their cognitive abilities. We aim to supplant this pillar by showing that the law of evidence pursues minimal, not maximal, rationality, and leaves it to the adversarial process to produce accurate (or inaccurate) results. Our primary aim is to describe the law of evidence and the rationality norm that best explains the evidentiary proof process. Although we largely put aside normative debates about whether the law of evidence should be constructed differently, our analysis generates normative implications. First, it generates implications for evidence scholarship, both positive and normative, that mismodels or misdescribes the law of evidence as pursuing maximal rationality (or other strong conceptions of rationality). Second, because the adversarial process—rather than the law of evidence—is primarily responsible for furthering accurate fact-finding, our analysis provides further support for increasing access to evidence and resources for criminal defendants. The various mechanisms and procedural devices that are designed to protect criminal defendants from wrongful convictions—the burden of persuasion, the right to counsel, and confrontation and compulsory process rights, for example—only work effectively with access to information. This Article, while contributing to the ongoing reconceptualization of the field of evidence, has potentially radical implications for the criminal process.

Dugas on Anti-Black Racism in Sentencing

Maria Dugas (Schulich School of Law, Dalhousie University) has posted Addressing anti-Black Racism in Sentencing: A Critical Comparison of R v Anderson, and R v Morris (The Canadian Bar Review | December 2024 (v 102(3))) on SSRN. Here is the abstract:

 

The release of R v Anderson, 2021 NSCA 62 and R v Morris, 2021 ONCA 68, marked the first time that IRCAs were considered by appellate courts in Canada despite IRCAs being used in sentencing hearings in Nova Scotia and Ontario since 2014. This paper critically assesses Anderson and Morris to highlight and discuss their differences. This critical assessment is necessary because the SCC has not weighed in on the use of IRCAs, and the NSCA and ONCA differ in their approach. As such, other jurisdictions will be looking to the NSCA and ONCA for guidance in IRCA cases. This is especially true now that the federal government has provided some financial support to roll IRCAs out across the country. This paper concludes that Anderson should be considered more persuasive authority on IRCAs primarily because it adopts a holistic approach to addressing anti-Black racism in sentencing, rather than the limited, piecemeal approach adopted in Morris.

Cheian on General and Specific Intent

Dinis Cheian has posted Solving General and Specific Intent: A Mapping on the MPC and Applications to the Categorical Approach (George Mason Law Review, Vol. 32, No. 1, 2024 (forthcoming)) on SSRN. Here is the abstract:

The terms “general” and “specific” intent are riddled with confusion. This confusion has persisted in both the federal courts and in the academia. For the first time, this Article alleviates this confusion by translating the two terms to the much clearer and well-understood mens rea defined in the Model Penal Code (“MPC”). But the Article does not stop there. It applies its translation to the categorical approach—for which an accurate comparison between the mens rea of different crimes is critical—to show how federal courts have been misapplying the law due to their misunderstanding of general and specific intent.

The Article proceeds in three Parts. Part I maps general intent onto the MPC. It establishes that general intent best matches the MPC’s mens rea of negligence. However, there is a wrinkle. A defendant can be convicted of a general intent crime if he is (1) negligent as to another crime subsumed by the charged crime and (2) he committed the acts required by the charged crime, regardless of his mens rea as to those acts. General intent, therefore, acts as an “in for a penny, in for a pound” crime that this Article calls “felony negligence.”

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Verdier on Transnational Enforcement

Pierre-Hugues Verdier (University of Virginia School of Law) has posted Transnational Enforcement Leadership and the World Police Paradox (Virginia Journal of International Law, Vol. 64, p. 239) on SSRN. Here is the abstract:

 

In an international system that lacks centralized authority, the burden of enforcing the law generally falls on individual states. In many areas of transnational enforcement such as financial fraud, cybercrime, and tax evasion, the United States has historically assumed a prominent leadership role. In recent years, other states have also expanded their enforcement capabilities and activities. This Article proposes a theoretical framework to understand transnational enforcement leadership, drawing on theories of global public goods (GPGs) and leadership from economics and political science. Because transnational enforcement often has the attributes of a GPG, it tends to be systematically underprovided. States that possess greater resources and can capture more of the benefits tend to become leaders, thus closing part of the gap. Leaders can also derive significant private benefits by extracting penalties from their targets and entrenching their own laws as global standards.

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Green on Homicide Exceptions to Criminal Law Defenses

Stuart P. Green (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Homicide Exceptions to Four Criminal Law Defenses: Consent, Duress, Necessity, and Statutes of Limitations (Palgrave Handbook on the Philosophy of Criminal Responsibility, forthcoming) on SSRN. Here is the abstract:

 

The law of homicide is exceptional within the criminal law in a variety of ways, including in: the severity of its sanctions; the complexity of its grading and labeling; the difficulties it faces in defining its protected class, especially at the beginning and end of life; and the fact that it recognizes at least one (partial) defense that does not apply to other crimes -- namely, provocation. In this paper, I focus on yet another, particularly striking, form of homicide exceptionalism: four key defenses that apply generally to other crimes, but in many jurisdictions do not apply to murder (or, sometimes, other homicide offenses). These defenses are consent, necessity, duress, and statutes of limitations.

At first glance, such exceptionalism, across such a broad array of defenses, is surprising.

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