CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	How Does Concealed Carrying of Weapons Affect Violent Crime? John R. Lott and Carlisle E. Moody Crime Prevention Research Center and College of William and Mary - Department of Economics Date Posted: 31 May 2024	1,365
2.	Charting the Indicted Crimes in Trump’s New York Criminal Trial Guha Krishnamurthi University of Maryland Francis King Carey School of Law Date Posted: 15 May 2024 [3rd last week]	231
3.	Solving General and Specific Intent: A Mapping on the MPC and Applications to the Categorical Approach Dinis Cheian Harvard University, Harvard Law School Date Posted: 11 Apr 2024 [4th last week]	189
4.	Inchoate Offences: Valid Crime or Unnecessary Constraint? Tanya Bhattamishra University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University Date Posted: 01 Dec 2023 [5th last week]	156
5.	Cybercrime and its Legal Implications: Analysing the challenges and Legal frameworks surrounding Cybercrime, including issues related to Jurisdiction, Privacy, and Digital Evidence Ishan Atrey University of Petroleum & Energy Studies (UPES) School of Law Date Posted: 26 Apr 2024 [6th last week]	97
6.	Misreading the Federal Child-Pornography Statutes Owen Senders Harvard University, Harvard Law School Date Posted: 19 Apr 2024 [7th last week]	85
7.	Public Defense and an Abolitionist Ethic Vincent Southerland New York University School of Law Date Posted: 14 May 2024 [8th last week]	85
8.	The New Outlawry Jacob D. Charles and Darrell A. H. Miller Pepperdine University - Rick J. Caruso School of Law and Duke University School of Law Date Posted: 10 Jun 2024 [9th last week]	73
9.	Whom Do Prosecutors Protect? Vida Johnson Georgetown Law Date Posted: 17 Apr 2024 [new to top ten]	73
10.	The Secret History of the Carceral State Laura I Appleman Willamette University College of Law Date Posted: 17 Apr 2024	63

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	White-on-Black Crime: Revisiting the Convict Leasing Narrative Ion Meyn University of Wisconsin Law School Date Posted: 01 May 2024	140
2.	Miscarriages of Justice in Immigration Detention Louis Century and Kent Roach Goldblatt Partners LLP and University of Toronto - Faculty of Law Date Posted: 10 Apr 2024	116
3.	Minimal Rationality and the Law of Evidence 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 Date Posted: 11 Apr 2024 [new to top ten]	108
4.	Whom Do Prosecutors Protect? Vida Johnson Georgetown Law Date Posted: 17 Apr 2024 [new to top ten]	73
5.	The Paper Prisons Racial Justice Act Data Tool Colleen V. Chien, William A. Sundstrom, Akhil Raj, Bennett Cyphers and Rayna Saron UC Berkeley School of Law, Santa Clara University - Leavey School of Business - Economics Department, Santa Clara University, UC Berkeley School of Law and UC Berkeley School of Law Date Posted: 05 Jun 2024 [new to top ten]	69
6.	The Secret History of the Carceral State Laura I Appleman Willamette University College of Law Date Posted: 17 Apr 2024 [new to top ten]	63
7.	Stormy Winds in Uncharted Seas: Navigating the Trump False Records Prosecution Franklin G. Snyder Texas A&M University School of Law Date Posted: 22 May 2024 [6th last week]	57
8.	Constructing Confrontation: Between Constitutional and Evidence Theory Michael S. Pardo Georgetown University Law Center Date Posted: 14 May 2024 [5th last week]	56
9.	The Prosecutor-Oriented Exclusionary Rule Guy Rubinstein Harvard Law School Date Posted: 01 Jun 2024 [10th last week]	50
10.	The Admissibility of Rap Lyrics in Court: A Review of As We Speak Michael Conklin Angelo State University - Business Law Date Posted: 25 Apr 2024 [9th last week]	49

Opinion rejecting Eighth Amendment challenge to applying anticamping laws to the homeless

Justice Gorsuch delivered the opinion of the Court in City of Grants Pass v. Johnson. Justice Thomas filed a concurring opinion. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented.

Opinion precluding Sarbanes-Oxley application to Jan. 6 defendants

Chief Justice Roberts delivered the opinion of the Court in Fischer v. United States. Justice Jackson filed a concurring opinion. Justice Barrett, joined by Justice Sotomayor and Kagan, dissented.

Brontt on Deferred Prosecution Agreements

Simon H Bronitt (Sydney Law School, The University of Sydney) has posted Regulating Deferred Prosecution Agreements: Payoffs and Pitfalls on SSRN. Here is the abstract:

 

This paper examines the issues of legal principle and policy arising from agreements to terminate or defer prosecution, reviewing the ‘payoffs’ and ‘pitfalls’ of using such agreements to deal with serious corporate crime. In the US and UK the advent of deferred prosecution agreements, or DPAs, has been heralded as another valuable tool for regulators, and the adoption of a DPA scheme is currently under consideration in Australia. However, as the paper demonstrates, the purposes and principles governing DPA schemes remain nascent and ill-defined. The author calls for the adoption of a more principled approach to deferred prosecution, one that prioritises preventive justice over regulatory pragmatism and expediency.

Lopez & Dancy on Punishing Government Leaders

Rachel López and Geoff Dancy (Drexel University Thomas R. Kline School of Law and University of Toronto) have posted Punishment in Transition on SSRN. Here is the abstract:

 

Many in the United States are hoping that the successful prosecution of former President Trump will signal an end to what they see as the anti-democratic and autocratic leanings of his administration. Such hopes build on a longstanding association between criminal trials of political leaders and transition to more stable democracy. Since Nuremburg, the criminal trial has been part of the iconography of transition. It captures our imagination, giving us the sense that “justice” has been done. The belief in the benefits of criminal punishment to transitioning societies has had a tangible impact on the current global legal order. It has informed the strategy of human rights defenders who push for criminal prosecutions of their former leaders. It has also been consecrated in law, with various sources of international law obligating States to investigate, prosecute, and punish gross violations of international humanitarian law and human rights law. Moreover, the Secretary General of the United Nations identified criminal punishment as one of the four pillars of transitional justice, claiming that it “helps strengthen societal trust and the rule of law.” But do criminal trials live up to this promise? Can a country really punish its way to a more democratic future?

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Snyder on The Trump False Records Prosecution

Franklin G. Snyder (Texas A&M University School of Law) has posted Stormy Winds in Uncharted Seas: Navigating the Trump False Records Prosecution on SSRN. Here is the abstract:

 

The New York criminal prosecution of former President Donald Trump is extraordinary. Even unique. Not just for the obvious reasons—the first indictment of a former President and the first trial of front-running major party Presidential candidate in the midst of the race—but for the sheer number of unprecedented legal issues that New York courts will have to face. It's doubtful that such time-consuming, expensive, and complex case has ever been brought on charges as legally convoluted as those in this case. Trump is charged with falsifying financial records to conceal another crime, but the prosecution will not disclose exactly what that crime is until it’s time to write jury instructions. The statute on which the prosecution is based has never previously been used for a stand-alone charge without an obvious tie to a serious criminal offense. The prosecution is sailing in completely uncharted seas.

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Oliver et al. on Computationally Assessing Suspicion

Wesley Oliver, Morgan A. Gray, Jaromir Savelka, and Kevin Ashley (Duquesne Law School, University of Pittsburgh School of Law, Carnegie Mellon University and University of Pittsburgh - School of Law) have posted Computationally Assessing Suspicion (University of Cincinnati Law Review, Vol. 92, No. 4, 2024) on SSRN. Here is the abstract:

 

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could more effectively access the thousands of judicial opinions that have considered this issue—the legality of continued detention. In developing a predictive model, implicit biases in judicial decision-making may also be unearthed, potentially providing police departments with the tools to modify policies—and courts the rationale to rethink precedent—to make the reasonable suspicion standard more racially neutral in application.

Skinner-Thompson on Privacy Without the State

Scott Skinner-Thompson (University of Colorado Law School) has posted Privacy Without the State? (Boston University Law Review, Vol. 104, 2024) on SSRN. Here is the abstract:

 

This article suggests that privacy scholars and advocates should both continue to center the privacy rights of marginalized communities and consider whether lived privacy can be achieved without reliance on state-based interventions, which in many contexts retrench subordination. Put differently, the article asks scholars to consider what the application of an abolitionist ethic to privacy law might look like.

Lott & Moody on Concealed Carry and Violent Crime

John R. Lott and Carlisle E. Moody (Crime Prevention Research Center and College of William and Mary - Department of Economics) have posted How Does Concealed Carrying of Weapons Affect Violent Crime? on SSRN. Here is the abstract:

 

Several articles have been published finding that carry concealed weapons (CCW) laws allowing citizens with a concealed carry permit to go about with a firearm concealed on their person, cause violent crime to increase. While most of the research finds that right-to-carry laws reduce crime, let’s assume that these laws do increase violent crime. There are three possible explanations for why concealed carry laws might increase crime, though few studies have examined them. Permit holders, even though they must pass a background check and satisfy the legal requirements to obtain a permit, become violent criminals after issuance. For example, one suggestion is that permit holders might be more susceptible to road rage than others. The second explanation is that as more people carry concealed, the rate of gun theft increases. The third explanation is that permit holders reduce the effectiveness of police. Using a unique new data set on the number of stolen guns and the number of concealed handgun permits, we find no evidence for any of these explanations.

Collins on Punishing Gender

Erin Collins (University of Richmond School of Law) has posted Punishing Gender (UCLA Law Review, Vol. 71, No. 316, 2024) on SSRN. Here is the abstract:

 

As jurisdictions across the country grapple with the urgent need to redress the impact of mass incarceration, there has been a renewed interest in reforms that reduce the harms punishment inflicts on women. These “gender-responsive” reforms aim to adapt traditional punishment practices that, proponents claim, were designed “for men.” The push to change how we punish based on gender, while perhaps well intentioned, is misguided. As abolition feminist principles reveal, these gender- responsive practices not only reify traditional gender norms, but also strengthen the operation of the carceral state. This Article catalogs the ways that the gender-responsive approach currently influences various decisions about criminal punishment, including about the length, location, and type of punishment one receives. Then, it provides an abolition feminist critique of how we “punish gender” and concludes that these efforts to treat some people better than others ultimately lead to a system that is worse for all.

Sigaud et al. on Drug Decriminalization, Public Health, and Crime

Liam Sigaud, Elijah Neilson, Vitor Melo, and Sebastian Anastasi (George Mason University - Mercatus Center, Southern Utah University, Clemson University and Clemson University - John E. Walker Department of Economics) have posted Drug Decriminalization, Public Health, and Crime: Evidence from Oregon on SSRN. Here is the abstract:

 

The war on drugs is widely criticized for failing to achieve its objectives and for its negative collateral effects. We investigate how a stark departure from this approach affects crime. We examine Oregon's Measure 110, a law that eliminated criminal penalties for personal possession of all drugs and increased funding for public health initiatives. Using a synthetic difference-indifferences strategy, we find that Measure 110 caused a 60% reduction in homicides, thereby preventing 72 deaths per year. It also caused a 23% increase in robberies (330 per year) and a 10% increase in burglaries (1,649 per year). We find no evidence of changes in other crimes. Applying standard social cost estimates, we estimate that Measure 110 decreased the net social cost of crime by about $828 million per year.

Baughman on Overincarceration and Prosecutorial Declination

Shima Baradaran Baughman (Brigham Young University - J. Reuben Clark Law School) has posted Can Prosecutorial Declination End Overincarceration? (Gonzaga Law Review, Forthcoming) on SSRN. Here is the abstract:

 

We know very little about why prosecutors charge a given case, how frequently they charge, and why they decline to charge cases. Scholars have discussed this issue despite the acknowledged “black box” around this question. Some have recently argued that progressive prosecution has influenced prosecutors to decline more cases. Others discuss rates of individual state and federal declination—showing high rates particularly for federal districts. One scholar has suggested that private prosecution might be the only viable alternative to public prosecution. Overall crime has certainly gone down in the U.S. and arrests have also dropped. But prosecutors have not necessarily reduced charging in commensurate ways. Given what we know about mass incarceration and prosecutors’ inordinate ability to exercise discretion in the criminal process, are prosecutors inclined to decline cases? What might factor in their decision?

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Follette et al. on Disabilities and Confessions

William C. Follette, Richard A. Leo, and Deborah Davis (University of Nevada, Reno, University of San Francisco and University of Nevada, Reno - Department of Psychology) have posted False Confessions and Miranda Waivers (Forthcoming In Elizabeth Kelley, Ed (2024). Representing People with Mental Disabilities: A Practical Guide for Criminal Defense Attorneys, 2nd Edition (Chicago: American Bar Association)) on SSRN. Here is the abstract:

 

This chapter by professors William C. Follette, Richard Leo, and Deborah Davis is an update of the version that appeared in the first edition of this book. The chapter contains some developments in the laws governing interrogations and a new section about compliance with the Americans with Disabilities Act (ADA). It remains a valuable guide for explaining why people with various kinds of mental disabilities are vulnerable to making false confessions; the role prescription drugs and self-medicating practices have on various kinds of mental disabilities; identifying and challenging false confessions; and working with experts for purposes of suppressing a false confession or diffusing the power of a false confession on a jury.

Turner on Remote Criminal Justice

Jenia Iontcheva Turner (Southern Methodist University - Dedman School of Law) has posted The Emerging Constitutional Law of Remote Criminal Justice (Wake Forest Law Review, Vol. 59, No. 3, 2024) on SSRN. Here is the abstract:

 

The COVID-19 pandemic compelled courts to experiment with a novel mode of criminal process: conducting proceedings via video. The remote format helped protect public health during the pandemic, and its convenience has led many states to continue using it in certain circumstances. Yet questions about its desirability and constitutionality have lingered, and many are concerned that it undermines the justice and integrity of criminal proceedings.

As the future of remote criminal justice is up for debate, it is important to assess to what degree it complies with fundamental constitutional principles. To that end, this Article offers a comprehensive analysis of cases addressing due process, confrontation, and right to counsel challenges to remote criminal proceedings. It analyzes courts’ reasons for granting or denying such challenges in decisions rendered by state and federal courts in 2020-23. The Article evaluates the decisions in light of relevant empirical research and then offers a framework to guide the emerging doctrine. It identifies several areas in which constitutional doctrine needs to be elaborated to provide greater transparency, predictability, and fairness. A coherent framework, informed by both research and precedent, can help ensure that the use of novel technologies to conduct criminal proceedings remains consistent with constitutional values.

Opinion holding federal statute reaches bribes but not gratuities

Justice Kavanaugh delivered the opinion of the Court in Snyder v. United States. Justice Gorsuch concurred. Justice Jackson, joined by Justices Sotomayor and Kagan, dissented.

Avey & Moen on Sexual Violence Sentencing

Jonathan Avey and Bryton Moen (affiliation not provided to SSRN and Manitoba Justice - Prosecution Service) have posted Speaking into a Void: Parliamentary Action Ignored in Sexual Violence Sentencing (Manitoba Law Journal, Volume 47, No. 4 (forthcoming)) on SSRN. Here is the abstract:

 

Canadian sentencing jurisprudence is heavily reflective of the Alberta Court of Appeal's determination of a three-year starting point for major sexual assaults in R v Sandercock, even in those jurisdictions that did not adopt it. This decision, issued in 1985, reflects attitudes and beliefs about sexual assault that are outdated and rely on improper myths and stereotypes. The Court also relied on sentencing guidance from England that was revisited in that country the very next year and has been revised numerous times since. Additionally, Parliament has made significant changes to the Criminal Code in the sentencing realm since. Despite these factors and the significantly greater understanding of the harm caused by sexual violence since 1985, courts continue to impose sentences that reflect the Sandercock starting point. Often, courts go below it, failing to account for the significant impacts of sexual violence on offenders. It is time to revisit sentencing guidance in this area. In this article, we look to comparable legal systems, and demonstrate that while other countries have adjusted their sentencing guidance to reflect the greater understanding that society now has of the harms caused by sexual violence, Canada has not. Instead, judges have talked tough, but failed to follow through. We provide numerous principled reasons that appellate courts across the country need to provide updated sentencing guidance and argue that sentences in this area must increase to properly account for appropriate sentencing principles.

Rubenstein on The Prosecutor-Oriented Exclusionary Rule

Guy Rubinstein (Harvard Law School) has posted The Prosecutor-Oriented Exclusionary Rule (Boston College Law Review, Vol. 65, No. 5, 2024) on SSRN. Here is the abstract:

 

The exclusionary rule has long been misunderstood. Scholars and judges perceive it as addressing police officers, warning them that evidence obtained in an unconstitutional search or seizure may be inadmissible in court. But officers typically care little about the ultimate conviction of suspects (as opposed to their arrest) and are therefore minimally deterred by possible suppression of evidence. Even when officers want to prevent suppression, they often do not know the complicated search and seizure rules and do not receive adequate training about them. This Article argues that the exclusionary rule’s deterrent benefits can be better appreciated and realized when understanding the rule as directed primarily to prosecutors, not to police officers. As prosecutor-oriented, the rule promotes lawful policing indirectly, by stimulating prosecutors to proactively encourage local police to adhere to the law. Unlike police officers, prosecutors do fear for the fate of their criminal cases and are therefore motivated to prevent police wrongdoing that could jeopardize them. Prosecutors are also experts on the rules governing searches and seizures in their jurisdiction and know best how to avoid triggering the exclusionary rule. Finally, prosecutors can (and do) positively influence police behavior, despite their lack of formal authority over them. Although many prosecutors around the country have employed various methods to promote lawful policing, others have remained passive. To realize the full deterrent potential of the prosecutor-oriented exclusionary rule, this Article proposes a three-pronged approach consisting of measures grounded in doctrine, politics, and legal ethics.

Chapman on Coercive Control, Parental Alienation, and Institutional Gaslighting

Frances Chapman (Lakehead University - Faculty of Law, Lakehead University) has posted At The Intersection Of Discrediting, Degradation & Denigration: Coercive Control, Parental Alienation, And Institutional Gaslighting (Women's Rights Law Reporter, Vol 44:1, Rutgers University, Pp. 52-103) on SSRN. Here is the abstract:

In the 1944 film “Gaslight,” the protagonist deceptively persuades his wife she is descending into insanity. The colloquialism “gaslighting” has entered the criminal legal discourse and is used to describe those who find themselves victims of reality distortions within a coercively controlling intimate relationship. The intersection of domestic violence and “parental alienation” (PA) has confounded researchers because it difficult to determine whether PA is prevalent in dysfunctional family relationships or if the phenomenon is a strategic ploy in legal disputes. Feminist researchers have shown that the abuse suffered by children and the victim parent, usually the mother, has been discredited, dismissed, or greatly minimized by the courts, and the safety of mothers and children are sacrificed in dangerous parenting arrangements that favor the manipulator. Parental alienation does exist but should be reserved for rare and specific cases. At present, many women find themselves in the terrible position of choosing their safety or risking the safety of their children, and ultimately custody, when parental alienation is alleged. Both criminal law and family law judges need to be educated on parental alienation, domestic violence, and mental health interventions to dispel the myth that PA discredits allegations of intimate partner violence. Women are being mislabelled as disordered alienators at the cost of their children. This paper will examine parental alienation and will close with one Canadian case to bring these issues to life. It may not be the abuser but instead the legal structure that is gaslighting women who seek the assistance of the system.

Greberman & Berryessa on Drug Policy and Sentencing

Emily Greberman and Colleen M. Berryessa (Rutgers, The State University of New Jersey - School of Criminal Justice and Rutgers, The State University of New Jersey - School of Criminal Justice) have posted Drug Policy, Drug War, and Disparate Sentencing (In Oxford Research Encyclopedia of Criminology and Criminal Justice. Oxford University Press) on SSRN. Here is the abstract:

 

The United States (U.S.) and its criminal-legal system have had a historically turbulent relationship with drugs and substance use. Public rhetoric, political ideology, and resulting policies, shaped by both rehabilitative and punitive ideals, have served as a foundation for the criminalization and mass incarceration of those who possess, distribute, and use illegal drugs–especially the targeting and blaming of communities of color. Early on, though drugs such as opium had versatile medical benefits, the use of heroin, crack/cocaine, and cannabis by people of color was quickly shaped into discourse that amplified fear and racist stereotypes and catalyzed the War on Drugs. Throughout several presidential administrations, the criminalization of drug crimes disproportionately affected Black individuals, despite White citizens using them at similar or higher rates. ‘Tough on crime’ policies, policing, and sentencing that resulted from this period culminated in the mass imprisonment of people of color.

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