CrimProf Blog

Hersch & Meyers on Conviction, Gender, and Employment

Joni Hersch and Erin E. Meyers (Vanderbilt University - Law School and Vanderbilt University, Law School, Law and Economics, Students) have posted The Gendered Burdens of Conviction and Collateral Consequences on Employment (Journal of Legislation, Forthcoming) on SSRN. Here is the abstract:

 

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living. This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men. This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record. In addition, women have access to far fewer vocational programs while incarcerated. Further exacerbating this burden is that women involved in the criminal justice system tend to be a more vulnerable population and are more likely to be responsible for children than their male counterparts, making legal restrictions on access to public assistance that would support employment more burdensome for women. We propose programs and policies that may ameliorate these gendered income burdens of criminal conviction, including reforms to occupational licensing, improved access to public assistance, reforms to prison labor opportunities, improvements in labor market information sharing, and expanded employer liability protection.

Purvis & Blanco on Police Sexual Violence

Dara E. Purvis and Melissa Blanco (Pennsylvania State University, Penn State Law and Pennsylvania State University, Penn State Law, Students) have posted Police Sexual Violence: Police Brutality, #MeToo, and Masculinities (California Law Review, Forthcoming) on SSRN. Here is the abstract:

 

A woman alleges that she was raped by a police officer while in police custody. The police officer acknowledges that he had sexual intercourse with the woman, but argues that she consented to the interaction. Despite the obvious power imbalance and troubling context of the sexual activity, in a majority of U.S. states, if the police officer convinces even one member of a jury that their activity was consensual, it is not illegal. Consent is an affirmative defense to allegations of sexual assault— even when the alleged assault occurs while the victim is in the custody of the perpetrator. 

Allegations of sexual assault committed by police officers while on duty, known as police sexual violence (PSV), are shockingly prevalent and surprisingly underanalyzed.

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Howell & Bustamante on The Bronx 120

Babe Howell and Priscilla Bustamante (CUNY School of Law and CUNY - The Graduate Center) have posted Report on the Bronx 120 Mass 'Gang' Prosecution (Bronx 120 Report, April 2019) on SSRN. Here is the abstract:

 

In recent years, takedowns of gangs and crews in New York City have led to mass prosecutions of multiple defendants for conspiracy and RICO (Racketeering Influenced Corrupt Organization Act) conspiracy charges. While the takedowns are generally accompanied by intensive media coverage, information about the charges, process, and allegations against individuals caught up in these takedowns is not readily accessible.

This report looks into the court records of the largest of the mass gang prosecutions — the takedown of the Bronx 120 in April of 2016.

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Searston & Chin on Black Box Expertise

Rachel Searston and Jason Chin (Independent and Sydney Law School) have posted The Legal and Scientific Challenge of Black Box Expertise (University of Queensland Law Journal (Forthcoming)) on SSRN. Here is the abstract:

 

Legal commentators widely agree that forensic examiners should articulate the reasons for their opinions. However, findings from cognitive science strongly suggest that people have little insight into the information they rely on to make decisions. And as individuals gain expertise, they rely more on cognitive shortcuts that are not directly accessible through introspection. That is to say, the expert’s mind is a black box – both to the expert and to the trier of fact. This article focuses on black box expertise in the context of forensic examiners who interpret visual pattern evidence (e.g., fingerprints). The authors review black box expertise through the lens of cognitive scientific research. They then suggest the black box nature of this expertise strains common law admissibility rules and trial safeguards.

Rankin on Punishing Homelessness

Sara Rankin (Seattle University School of Law) has posted Punishing Homelessness (22 New Criminal Law Review 1, 99–135 (2019)) on SSRN. Here is the abstract:

 

Homelessness is punishing to those who experience it, not just from the inherent and protracted trauma of living exposed on the street, but also due to widespread and pervasive laws that punish people for being homeless. People experiencing homelessness, particularly chronic homelessness, often lack reasonable alternatives to living in public. Yet cities throughout the country are increasingly enacting and enforcing laws that punish the conduct of necessary, life-sustaining activities in public, even when many people have no other option. These laws are frequently challenged in court and often struck down as unconstitutional. But legally sound, cost-effective, and non-punitive alternatives to ending chronic homelessness exist. This article exposes some of the problems with criminalization laws, not only for people experiencing homelessness, but also for the broader community.

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Levy on Criminal Responsibility

Ken Levy (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Criminal Responsibility (SAGE Encyclopedia of Criminal Psychology (Sage Publishing, 2019), pp. 269-72) on SSRN. Here is the abstract:

 

This invited entry offers a brief overview of criminal responsibility. 

The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification.

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Boslan on Restraining "Extraneous" Prejudicial Publicity

Jason John Bosland (University of Melbourne) has posted Restraining 'Extraneous' Prejudicial Publicity: Victoria and New South Wales Compared (University of New South Wales Law Journal, Vol. 41, No. 4, 2018) on SSRN. Here is the abstract:

 

This article explores the powers available to courts in Victoria and New South Wales to restrain the media publication of ‘extraneous’ prejudicial material – that is, material that is derived from sources extraneous to court proceedings rather than from the proceedings themselves. Three sources of power are explored: the power in equity to grant injunctions to restrain threatened sub judice contempt, the inherent jurisdiction of superior courts and, finally, statutory powers in New South Wales under the Court Suppression and Non-publications Orders Act 2010 (NSW) and in Victoria under the Open Courts Act 2013 (Vic). It argues that the approach of the Victorian courts is much broader in terms of the scope and application of orders, which potentially explains why orders restraining extraneous material are more commonly made in Victoria than in New South Wales. It further argues that the Victorian approach presents some significant consequences for publishers.

Walton on Sex Trafficking Victims, Expungement, and Vacatur

S. Ernie Walton (Regent University - Regent Law Center for Global Justice, Human Rights, and the Rule of Law) has posted Protecting Sex Trafficking Victims Through Expungement and Vacatur Statutes: Will Virginia Join the Rest of the Nation? on SSRN. Here is the abstract:

 

The Virginia General Assembly is making great headway in the fight against sex trafficking, and for that it should be commended. But it is lacking in one key area – enabling victims to expunge or vacate certain offenses from their criminal records. By the very nature and definition of the crime, sex trafficking victims are forced to engage in criminal activity. But rather than identify these individuals as victims in need of care, law enforcement often mistakenly processes them as criminals. With prostitution and related convictions on their records, sex trafficking survivors face significant barriers to obtaining housing, employment, public benefits, etc. Thankfully, there is a solution. Known as "criminal record relief laws," these laws enable sex trafficking victims to clear their criminal records of certain offenses that occurred as a result of their being trafficked. While the statutes vary significantly across the states with respect to procedure and substance, all but six states have passed some form of criminal record relief law. Virginia is one of those six states, and Virginia also lacks other key protections for victims like an affirmative defense to prosecutions for prostitution. The Virginia General Assembly must act now and pass a criminal record relief law to protect sex trafficking victims.

van Sliedregt on Joint Enterprise Liability

Elies van Sliedregt (Centre for Criminal Justice Studies, School of Law) has posted Joint Criminal Confusion: Exploring the Merits and Demerits of Joint Enterprise Liability (Beatrice Krebs (ed.), Accessorial Liability After Jogee (Hart Publishing 2019)) on SSRN. Here is the abstract:

 

In February 2016, the UK Supreme Court fundamentally changed the criminal law principles of accessorial liability when it handed down its decision in R v Jogee. The Court abolished the head of liability known as 'joint criminal enterprise' (JCE) and replaced it with the ordinary principles of aiding and abetting, which it re-stated for this purpose. JCE features prominently in international criminal law (ICL) where it has an equally contentious status. The full implications of Jogee remain at present uncertain, underexplored and divisive. In this chapter, I evaluate the merits and demerits of joint enterprise by comparing JCE in English law and ICL. A cross-jurisdictional analysis of joint enterprise reveals more deeply the role the notion plays in the overall taxonomy of criminal responsibility. There are different concepts of joint enterprise with different theoretical groundings. By not recognising this, past debates of joint enterprise liability have failed to appreciate the concept’s merits alongside complicity liability.

Perlin on Therapeutic Jurisprudence and Ordinary Common Sense

Michael L. Perlin (New York Law School) has posted 'Deceived Me into Thinking/I Had Something to Protect': A Therapeutic Jurisprudence Analysis of When Multiple Experts Are Necessary in Cases in which Fact-Finders Rely on Heuristic Reasoning and 'Ordinary Common Sense' on SSRN. Here is the abstract:

 

There is a stunning disconnect between the false “ordinary common sense” of fact-finders (both jurors and judges) and the valid and reliable scientific evidence that should inform decisions on the full range of questions that are raised in cases involving the forensic mental health systems – predictions of future dangerousness, competency and insanity determinations, sentencing mitigation in death penalty cases, and sexually violent predator commitments. Abetted by the misuse of heuristic reasoning (the vividness effect, confirmatory bias, and more), decisionmakers in such case frequently “get it wrong” in ways that poison the criminal justice system. If we were to adopt this proposal – to provide two experts in cases in which such inaccuracy is likely, one to explain to the fact-finders why their “common sense” is fatally flawed, and one to provide an evaluation of the defendant in the context of the specific question before the court – then, and only then, would therapeutic jurisprudence principles be vindicated.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Opposite of Punishment: Imagining a Path to Public Redemption Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 19 Jun 2019 [3rd last week]	94
2.	Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States Amy J. Cohen Ohio State University (OSU) - Michael E. Moritz College of Law Date Posted: 17 May 2019 [2nd last week]	84
3.	Neuroscience, Justice and the 'Mental Causation' Fallacy John A. Humbach Pace University School of Law Date Posted: 17 May 2019 [5th last week]	77
4.	An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault Elaine Craig Dalhousie University - Schulich School of Law Date Posted: 20 Jun 2019 [new to top ten]	65
5.	Liability of Sister Companies and Subsidiaries in European Competition Law Christian Kersting Heinrich Heine University Düsseldorf - Faculty of Law Date Posted: 03 Jun 2019 [6th last week]	55
6.	Criminal Clear Statement Rules Carissa Byrne Hessick and Joseph Edward Kennedy University of North Carolina School of Law and University of North Carolina Date Posted: 24 May 2019 [7th last week]	53
7.	IQ, Culpability, and the Criminal Law’s Gray Area: Why the Rationale for Reducing the Culpability of Juveniles and Intellectually Disabled Adults Should Apply to Low-IQ Adults Adam Lamparello Independent Date Posted: 30 May 2019 [9th last week]	52
8.	Democracy, Bureaucracy and Criminal Justice Reform Lauren M. Ouziel Temple University - James E. Beasley School of Law Date Posted: 06 Jun 2019 [10th last week]	42
9.	Naira Marley vs. Economic and Financial Crimes Commission: the Extent of Freedom of Expression in Nigeria, and the EFCC’s Inefficiencies—A Legal Opinion. Gbenga Odugbemi Babcock University - School of Law and Security StudiesUniversity of Edinburgh - School of Law Date Posted: 05 Jun 2019 [new to top ten]	38
10.	Deliberate Ignorance and the Law Eyal Zamir and Roi Yair Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem Date Posted: 25 Jun 2019 [new to top ten]	37

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance Roseanna Sommers and Vanessa K. Bohns University of Chicago - Law School and Cornell University Date Posted: 23 May 2019 [2nd last week]	520
2.	Beyond Bias: Re-Imagining the Terms of ‘Ethical AI’ in Criminal Law Chelsea Barabas MIT Media Lab Date Posted: 23 May 2019 [3rd last week]	187
3.	When Plea Bargaining Became Normal William Ortman Wayne State University School of Law Date Posted: 29 May 2019 [4th last week	157
4.	Plea-Bargaining: Socio-Legal Impacts on the Criminal Justice System of Bangladesh Md. Pizuar Hossain and Tureen Afroz East West University and East West University Date Posted: 04 Jun 2019 [5th last week]	114
5.	The Opposite of Punishment: Imagining a Path to Public Redemption Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 19 Jun 2019 [9th last week]	94
6.	Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States Amy J. Cohen Ohio State University (OSU) - Michael E. Moritz College of Law Date Posted: 17 May 2019 [7th last week]	84
7.	Incorporating Collateral Consequences into Criminal Procedure Paul T. Crane University of Richmond School of Law Date Posted: 07 May 2019 [8th last week]	79
8.	Big Data Prosecution and Brady Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 07 Jun 2019 [10th last week]	69
9.	Confrontation After Scalia and Kennedy Michael S. Pardo University of Alabama School of Law Date Posted: 17 May 2019 [new to top ten]	65
10.	The Haves of Procedure Ion Meyn University of Wisconsin Law School Date Posted: 22 May 2019 [new to top ten]	65

Vetrovsky on Mens Rea, Intentionality, and Wittgenstein

Jaroslav Vetrovsky (University of West Bohemia) has posted Mens Rea, Intentionality and Wittgenstein’s Philosophy of Psychology (Bergsmo, M., Buis, E., J. (eds.). Philosophical Foundations of International Criminal Law: Correlating Thinkers. Brussels: Torkel Opsahl Academic EPublisher, 2018) on SSRN. Here is the abstract:

 

The paper seeks to apply Wittgenstein’s philosophy of psychology – taken to represent a middle path between Cartesian dualism and radical behaviourism – to the concept of mens rea in international criminal law. It is suggested that to grasp the concept correctly, we must get rid of the commonplace assumption regarding the so-called private character of our intentions, according to which only an individual whose intention it is can really know what they are intending, while knowledge of other people, such as judges or court witnesses, is in this respect only mediate.

Denno on Execution Methods

Deborah W. Denno (Fordham University School of Law) has posted Execution Methods in a Nutshell (HANDBOOK ON CAPITAL PUNISHMENT. New York: Routledge 427-445 (Robert M. Bohm & Gavin Lee, eds. 2017)) on SSRN. Here is the abstract:

In the wake of numerous cruel and troubling execution methods, lethal injection seemed to be the answer to this country’s centuries-long search for a medically humane means of putting an inmate to death. However, lethal injection is currently being subjected to an unprecedented degree of scrutiny due to various factors, including botched executions, problematic protocols, and drug shortages and restrictions. An historical overview puts these circumstances in context. In 1977, a year after Gregg v. Georgia, Oklahoma became the first state to adopt lethal injection, despite the fact that the procedure had never been medically or scientifically studied on human beings. Even without proper medical justification, 38 more states adopted lethal injection between 1977 and 2009. As more states began utilizing lethal injection, the method faced more challenges, leading to a decrease in the number of executions being performed. The Supreme Court attempted to address these challenges in Baze v. Rees (2008), in which the Court upheld the constitutionality of Kentucky’s lethal injection protocol.

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Nesson & Nesson on Confrontation and Crawford

Fern L. Nesson and Charles R. Nesson (Harvard Law School '71 and Harvard Law School) have posted The Confrontation Clause: Get Raleigh Right - Overrule Crawford on SSRN. Here is the abstract:

 

Crawford v. Washington, 542 U.S. 36 (2004), is the latest in a series of misconceived confrontation holdings. Its 'testimonial' hearsay standard has created endless confusion and done nothing to protect the rights of defendants nor the needs of fair jury trials. Constitutional confrontation requires legal sufficiency of proof. A crime may not be proved by hearsay alone. This is not a rule about the admissibility of hearsay evidence. It is a rule responsive to the injustice done to Sir Walter Raleigh mandating proof of criminal guilt by live-witness, personal-knowledge testimony sufficient to warrant conviction. Overruling Crawford and replacing it with a proper judicial understanding of the Sixth Amendment will rationalize confrontation law and restore the centrality of jury process to American criminal justice.

Zamir & Yair on Deliberate Ignorance

Eyal Zamir and Roi Yair (Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem) have posted Deliberate Ignorance and the Law (Ralph Hertwig and Christoph Engel (eds.) (Forthcoming, Strüngmann Forum Reports, vol. 29, J. R. Lupp, series editor, MIT Press) on SSRN. Here is the abstract:

 

This paper offers a bird’s-eye view of existing legal doctrines and institutions that overcome or foster deliberate ignorance, critically assesses these doctrines and institutions, and considers extensions thereof. 

The first part of the paper focuses on three legal means of discouraging deliberate ignorance: (1) subjecting people who could have acquired the relevant information to the same treatment as those who acted knowingly; (2) imposing positive duties to acquire information; and (3) rendering information more conspicuous, thereby making it more difficult to ignore. It also touches upon the issue of collective ignorance.

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Ryo on Predicting Danger in Immigration Courts

Emily Ryo (University of Southern California Gould School of Law) has posted Predicting Danger in Immigration Courts (Law and Social Inquiry, Vol. 44, No. 1, 2019) on SSRN. Here is the abstract:

 

Every year, the US government detains thousands of noncitizens in removal proceedings on the basis that they might pose a threat to public safety if released during the pendency of their removal proceedings. Using original audio recording data on immigration bond hearings, this study examines immigration judges’ determinations regarding which noncitizens pose a danger to the community. My multivariate analysis that controls for a variety of detainee background characteristics and criminal-conviction-related measures produced three main findings. First, I find that Central Americans are more likely to be deemed dangerous than non-Central Americans. Second, I find that detainees with attorneys are less likely to be deemed dangerous than pro se detainees. Finally, my analysis shows that whereas felony and violent convictions are associated with higher odds of being deemed dangerous, the recency of criminal convictions and the total number of convictions are not predictive of danger determinations. Together, these findings provide new insights into the socio-legal construction of immigrant criminality.

Larkin on Presidential Clemency

Paul J. Larkin, Jr. (The Heritage Foundation) has posted The Future of Presidential Clemency Decisionmaking (University of St. Thomas Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

The Framers gave the president the clemency power when the federal government and the nation were in their infancy. The president has far more demands on his time today than George Washington did in 1789. The time necessary to make clemency decisions, even if done properly (and it has not always been done that way) alone could keep a large number of aides busy full time, let alone exhaust a chief executive troubled by the prospect that too many innocent people are rotting in prison or that too many people have been sentenced to the slow death of unnecessarily long terms of imprisonment. Accordingly, the question is whether the president should leave clemency judgments to others, particularly ones who are professionals at sentencing.

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Bartels & Freiberg on Credit for Time on Parole

Lorana Bartels and Arie Freiberg (Australian National University (ANU) - ANU Centre for Social Research and Methods and Monash University - Faculty of Law) have posted Street Time Is No Sweet Time: Granting Credit for Time on Parole in Australia (Current Issues in Criminal Justice) on SSRN. Here is the abstract:

 

This article examines how time spent on parole, commonly known as ‘street time’, is dealt with where a parolee breaches their parole. In some jurisdictions, street time is credited as time served, in some it is forfeited and, in others, parole authorities have discretion whether to grant credit. This article examines Australian laws regarding credit for street time, presents the data available, and considers the rationale for and against crediting street time. We argue that it is appropriate to recognise time spent under sentence in the community in the event of any subsequent breach, as this recognises (imperfect) progress, rather than promoting an all-or-nothing compliance-focused model of parole.

Ewald on Occupational Licensure for People with Criminal Records

Alec Ewald (University of Vermont - Department of Political Science) has posted Barbers, Caregivers, and the ‘Disciplinary Subject’: Occupational Licensure for People With Criminal Justice Backgrounds in the United States (Fordham Urban Law Journal, Vol. 46, No. 4, 2019) on SSRN. Here is the abstract:

 

It is commonly assumed that people with criminal backgrounds are ineligible for licensed employment in the United States. This study, based on more than one hundred interviews with occupational-certification officials in states across the country, demonstrates that people with conviction histories seeking professional credentials confront an unpredictable process that resurrects and amplifies their records and often requires them to perform their rehabilitation, good character, and governability. State laws are extremely varied, complex, and sometimes opaque; application procedures expose would-be licensees to inspection and judgment by a variety of public and private actors. People with criminal backgrounds are not flatly excluded from occupational certification.

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