CrimProf Blog

Ouss & Rappaport on Whether Police Behavior Is Getting Worse

Aurelie Ouss and John Rappaport (University of Pennsylvania and University of Chicago - Law School) have posted Is Police Behavior Getting Worse? The Importance of Data Selection in Evaluating the Police on SSRN. Here is the abstract:

 

Public concern about harmful policing is surging. Governments are paying historic amounts for law enforcement liability. Has police behavior changed? Or is society responding differently? Traditional data sources struggle with this question. Common metrics such as lawsuits and payouts conflate the prevalence and severity of policing harms with the responses of legal actors such as lawyers, judges, and juries. We overcome this problem using a new data source: liability insurance claims. Our dataset contains 23 years of claims against roughly 350 law enforcement agencies that contract with a single insurer. We find that while lawsuits and payouts have trended upwards over the past decade, insurance claims have declined. We generate and test multiple explanatory hypotheses. We conclude that, in our sample, police behavior is not getting worse; rather, public responses to policing harms are intensifying. Data selection, our analysis shows, strongly influences results in policing research. 

Bulovsky on Overlapping Multi-Jurisdictional Liability

Andrew Bulovsky (University of Michigan Law School - JD Candidate Author) has posted On Proportionality and Predictability: Evaluating Solutions to Overlapping Liability and Multi-Jurisdictional Disgorgement in International Anti-Corruption Enforcement (Michigan Journal of International Law, Vol. 40, 2019, Forthcoming) on SSRN. Here is the abstract:

As business increasingly cuts across national borders — and countries implement and enforce anti-corruption regimes aggressively — companies find themselves subject to liability in multiple jurisdictions. While fighting corruption is a normatively valuable goal, overlapping liability makes it difficult for a company to determine the extent of its potential liability. This lack of predictability has unintended consequences: it undermines the international business environment and over-deters beneficial behavior, such as investing in the developing world. Scholars have articulated an interest in creating a formal mechanism to solve this problem, but they have yet to adequately describe the basic provisions such a mechanism would contain. As such, this note is a first attempt to articulate the elements of an effective solution.

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Ferzan on Consent and Coercion

Kimberly Kessler Ferzan (University of Virginia, School of Law) has posted Consent and Coercion (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

There are substantial disputes as to what sorts of behavior constitute coercion and thereby undermine consent. This disagreement was on full display during the public fray over Aziz Ansari’s behavior on a date. Whereas some commentators condemned Ansari’s behavior as nothing short of sexual assault, others believed his behavior did not rise to the level of undermining consent.

This Article claims that the way forward is to see that there are two normative functions for coercion, and each is at play with respect to consent. Sometimes coercion is about the blameworthiness of the coercer, and sometimes coercion is about the involuntariness of the consenter’s choice. To deny the latter is not to deny the former. Because these are two disparate functions, much of the debate about Ansari may be commentators talking past each other.

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Freiwald & Smith on Carpenter

Susan Freiwald and Stephen W. Smith (University of San Francisco School of Law and Stanford Law School Center for Internet and Society) has posted The Carpenter Chronicle: A Near Perfect Surveillance (132 Harvard Law Review 205 (2018)) on SSRN. Here is the abstract:

 

For well over a quarter century, law enforcement has surreptitiously converted the personal cell phone into a tracking device, capable of compiling a comprehensive chronicle of the user’s movements over an extended period of time. With the 2018 Carpenter v. United States decision the Supreme Court has confronted the constitutionality of this practice and determined that a warrant based on probable cause is required by the Fourth Amendment. In doing so, the Carpenter Court adopted a normative approach well suited for the question presented but long avoided by lower courts. It also significantly circumscribed the “third party doctrine”; this new limitation will no doubt reverberate throughout many decisions involving nonpublic databases that hold vast and ever-growing amounts of our digital data.

Scholars debate whether the legislative or the judicial branch is better equipped to adjust the balance between security and privacy as new tools become available. In the case of cell phone tracking, both branches were slow and neither was effective, permitting millions of searches that have now been declared unconstitutional.

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Binder et al. on The Death Penalty for Inadvertent Killing

Guyora Binder, Brenner Fissell and Robert Weisberg (University at Buffalo Law School, Hofstra University - Maurice A. Deane School of Law and Stanford Law School) have posted Unusual: The Death Penalty for Inadvertent Killing (93 Indiana Law Journal 549 (2018)) on SSRN. Here is the abstract:

 

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony but has not yet addressed the culpability required for execution of the actual killer. In this Article, we urge the recognition of a new Eighth Amendment norm against executing even actual killers who lack a culpable mental state of at least recklessness, with respect to the victim’s death. Using the methods employed by the Supreme Court for determining “evolving standards of decency,” we survey the pertinent homicide and sentencing laws of the fifty-three criminal law jurisdictions in the United States. Second, we evaluate the facts of the cases that resulted in the nearly five hundred executions that have taken place since 1973, when the post-Furman statutes became operative, and 2016, in those jurisdictions permitting execution for inadvertent killing. We did the same for the facts of the 1755 cases of all death row inmates convicted in those jurisdictions and alive at the time of the study (2016). This analysis shows that capital punishment for inadvertent killing has become “truly unusual,” and therefore, unconstitutional.

Bentley on Police Drone Use

Jennifer Bentley (University of California, Hastings College of the Law, Students) has posted Policing the Police: Balancing the Right to Privacy Against the Beneficial Use of Drone Technology (70 Hastings L.J. 249 (2018)) on SSRN. Here is the abstract:

 

The cost of buying, operating, and maintaining manned aircraft traditionally limited the government’s ability to conduct widespread aerial surveillance. But drone technology is eroding this natural limit because they are cheaper, stealthier, and can be used as a platform for other powerful surveillance tools. Drones are ideally suited for numerous law enforcement tasks such as search and rescue, crime scene investigations, and gaining a bird’s-eye view in dangerous active shooter or hostage situations. Privacy rights advocates fear that drone capabilities are bringing us closer to a “surveillance society” in which our every move is monitored, recorded, and scrutinized by the government, and have led the fight to either require police to obtain a warrant before using a drone or to ban the use of drones altogether. At the federal government level, only the FAA regulates drones but the Agency considers privacy outside the scope of its authority. Approximately one-third of states require law enforcement to obtain a warrant prior to using a drone to conduct a search or surveillance. A handful of local governments have banned the use of drones by law enforcement entirely in response to privacy concerns. However, overly broad restrictions on drone use have an unintended consequence in that they also curtail non-invasive, beneficial uses of drones. The Fourth Amendment likely does not protect individuals from warrantless drone surveillance provided the drone does not physically trespass and only captures what is visible from public airspace. This Note considers the twin harms of a surveillance society and depriving law enforcement of the beneficial uses of drones and concludes that states, as the laboratories of democracy, must act to reign in the use of unmanned aircraft by law enforcement so that public backlash against the threat to privacy does not result in the total deprivation of this useful technology.

Herlin-Karnell on The European Public Prosecutor's Office

Ester Herlin-Karnell (VU University Amsterdam - Faculty of Law) has posted The Establishment of a European Public Prosecutor's Office: Between ‘Better Regulation’ and Subsidiarity Concerns (Erkelens, Geelhoed and Meij (eds) The Establishment of the European Public Prosecutor’s Office (EPPO): “State of Play and Perspectives (Springer 2018)) on SSRN. Here is the abstract:

 

The chapter investigates the establishment of the European Public Prosecutor 's Office (EPPO) from the perspective of better regulation and subsidiarity. The chapter addresses the question as to what extent the idea for the creation of an EPPO represents ’Better Regulation’ as well as to what extent the subsidiarity concerns expressed by the Member States are well founded when considering the EU financial crimes area as a whole. The chapter concludes by discussing the ’Better Regulation’ criteria specifically with regard to subsidiarity concerns in EU criminal law.

Slobogin on Limiting Retributivism and Prevention

Christopher Slobogin (Vanderbilt University - Law School) has posted Limiting Retributivism and Prevention (The Routledge Handbook on the Philosophy and Science of Punishment (Farah Focquaert, ed., Forthcoming)) on SSRN. Here is the abstract:

 

Limiting retributivism, also known as modified desert theory, is a “mixed theory” of punishment that posits that retributive principles should set the outer bounds of a sentence, while the precise nature and duration of disposition should be designed to implement one or more independent criminal justice system goals. This chapter focuses on a particular version of limiting retributivism, which it calls “preventive justice.” Similar in concept to traditional indeterminate sentencing, a preventive justice regime adopts sentence ranges consistent with the offender’s desert and then relies on expert parole boards to determine the nature and duration of sentence within this range based on consideration of individual prevention goals (i.e., incapacitation, specific deterrence and rehabilitation). The analysis of this chapter suggests that a system of relatively wide sentence ranges derived from retributive principles, in combination with short minimum sentences that are enhanced under limited circumstances by statistically-driven risk assessment and management, can alleviate many of the inherent tensions between desert and prevention, between deontology and political reality, and between the desire for community input and the allure of expertise. If done properly, it should also significantly reduce prison populations.

Lessard on The Ethics of Judging Sexual Assault Cases

Michaël Lessard (New York University (NYU), School of Law) has posted an abstract of  Why Couldn’t You Just Keep Your Knees Together? L’obligation déontologique des juges face aux victimes de violences sexuelles [trans. 'The Ethics of Judging Sexual Assault Cases'] ((2017) 63:1 McGill Law Journal 155) on SSRN. Here is the abstract:

 

In recent years, high-profile cases have shed light on the behaviour of certain judges towards victims of sexual violence, thus undermining public confidence and victims’ confidence in the judicial system. Among these cases, there is the one of Judge Robin Camp who asked a victim: “why couldn’t you just keep your knees together?” This statement has had the effect of putting the spotlight on a section of the judiciary which still contributes to the myth of the “good victim” (or “perfect victim”).

In this text, I argue that judges commit a breach of judicial ethics when they make a remark or a statement that (1) is likely to maintain the myth of the good victim, (2) participates in one of the four related stereotypes condemned in law and (3) is not justified by its relevance and necessity for legal reasoning.

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Lott & Moody on Red Flag Laws

John R. Lott and Carlisle E. Moody (Crime Prevention Research Center and College of William and Mary - Department of Economics) have posted Do Red Flag Laws Save Lives or Reduce Crime? on SSRN. Here is the abstract:

 

Red flag laws had no significant effect on murder, suicide, the number of people killed in mass public shootings, robbery, aggravated assault, or burglary. There is some evidence that rape rates rise. These laws apparently do not save lives.

Thompson on Racial Stereotypes in the Courtroom

Mikah Thompson (UMKC School of Law) has posted Bias on Trial: Toward an Open Discussion of Racial Stereotypes in the Courtroom (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In the 2017 case Pena-Rodriguez v. Colorado, the U.S. Supreme Court discussed several safeguards that are in place to assist the trial court in identifying racial bias among jurors. These safeguards include voir dire examination regarding racial bias, observation of juror demeanor and conduct that might demonstrate racial bias, reports of racially biased comments or actions by jurors during trial, and non-juror evidence of racial bias after trial. The Court acknowledged that these safeguards may be insufficient at times and therefore added a fifth one, holding that trial courts may review evidence suggesting that racial bias was a motivating factor in a juror’s decision to convict a criminal defendant even when the evidence of bias rears its head during otherwise non-impeachable jury deliberations. 

This Article demonstrates that the safeguards identified by the Court must be improved if they are to assist trial courts in ferreting out juror bias.

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Biagioli on Justice Out of Balance

Mario Biagioli (University of California, Davis - School of Law) has posted an abstract of Justice Out of Balance (Critical Inquiry, 45 (2019):280-306). Here is the abstract;

 

The balance is the oldest element in the iconography of justice, both secular and divine. First encountered in the Egyptian Book of the Dead, it resurfaces in Persian religious texts, in the Old and New Testament, and in the Koran The balance adorns court houses throughout the world, emblematizing justice with its purported ability to weigh accurately the opposing arguments, evidence, and interests pitting plaintiffs against defendants. It also embodies the paradigmatic image of criminal law at the center of this essay: the balancing of crime and punishment. There is a gap, however, between the balance’s iconographic success and the quality of its performance as an instrument of justice. This essay is about that gap.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Crime Follies: Overcriminalization, Independent Prosecutors, and the Rule of Law Glenn Harlan Reynolds University of Tennessee College of Law Date Posted: 20 Dec 2018	1,389
2.	Legal Personhood and Liability for Flawed Corporate Cultures Jennifer G. Hill The University of Sydney Law School Date Posted: 03 Jan 2019	162
3.	Mens Rea Reform and Its Discontents Benjamin Levin University of Colorado Law School Date Posted: 15 Jan 2019	122
4.	Prosecution and Punishment of Corporate Criminality Mihailis Diamantis and William S. Laufer University of Iowa - College of Law and University of Pennsylvania - Legal Studies Department Date Posted: 20 Dec 2018	71
5.	Efficient Institutions and Effective Deterrence: On Timing and Uncertainty of Punishment Johannes Buckenmaier, Eugen Dimant, Ann-Christin Posten and Ulrich Schmidt University of Zurich - Department of Economics, University of Pennsylvania, Behavioral Ethics Lab, Harvard University - Edmond J. Safra Center for Ethics and University of Kiel - Institute of Economics Date Posted: 31 Dec 2018	69
6.	Reinvigorating Criminal Antitrust? D. Daniel Sokol University of Florida Levin College of Law Date Posted: 27 Dec 2018  Last Revised: 16 Jan 2019	60
7.	Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence Mugambi Jouet McGill Faculty of Law Date Posted: 22 Jan 2019 [new to top ten]	52
8.	High Crimes Without Law Nikolas Bowie Harvard Law School Date Posted: 02 Jan 2019 [9th last week]	48
9.	Missed or Foregone Mitigation: Analyzing Claimed Error in Missouri Capital Clemency Cases Leona Deborah Jochnowitz Curry College Date Posted: 04 Aug 2019 (10th last week)	44
10.	Defences: Justification, Excuse and Provocation Chloe Kennedy University of Edinburgh - School of Law Date Posted: 19 Dec 2018 [new to top ten]	43

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Implementing Carpenter Orin S. Kerr University of Southern California Gould School of Law Date Posted: 18 Dec 2018	630
2.	The Uncertain Future of Forensic Science Jennifer Mnookin University of California, Los Angeles (UCLA) - School of Law Date Posted: 13 Dec 2018	362
3.	Fourth Amendment Reasonableness After Carpenter Alan Z. Rozenshtein University of Minnesota Law School Date Posted: 04 Jan 2019 [4th last week]	155
4.	The Paradoxes of Legal Proof: A Critical Guide Michael S. Pardo University of Alabama School of Law Date Posted: 11 Dec 2018 [3rd last week]	145
5.	Fourth Amendment Textualism Jeffrey Bellin William & Mary Law School Date Posted: 13 Jan 2019	134
6.	Wealth-Based Penal Disenfranchisement Beth A. Colgan University of California, Los Angeles (UCLA) - School of Law Date Posted: 09 Jan 2019	83
7.	An Unappreciated Constraint on the President's Pardon Power Aaron J. Rappaport University of California Hastings College of the Law Date Posted: 03 Dec 2018	68
8.	A Game of Katso and Mouse: Current Theories for Getting Forensic Analysis Evidence Past the Confrontation Clause Ronald J. Coleman and Paul F. Rothstein Georgetown University Law Center and Georgetown University Law Center Date Posted: 31 Dec 2018 [9th last week]	66
9.	What Jurors Should Know about Informants: The Need for Expert Testimony Robert M. Bloom Boston College Law School Date Posted: 05 Dec 2018 [new to top ten]	65
10.	Wealth, Equal Protection, and Due Process Brandon L. Garrett Duke University School of Law Date Posted: 19 Jan 2019 [new to top ten]	64

Kurmaiev on Prostitution

Petro Kurmaiev (Pavlo Tychyna Uman State Pedagogical University) has posted Prostitution: The Essence and Motives on SSRN. Here is the abstract:

 

The article analyzes the main approaches to the interpretation of prostitution from the legal, economic, sociological, psychological, sexological and religious points of view. The author formulates its own definition, in which prostitution is considered as a form of entrepreneurial activity for the provision of sexual services on a paid basis, aimed at meeting sexual needs. The basic preconditions that are necessary for the prostitution to become the signs of entrepreneurial activity are presented: availability of commodity-money relations; religious and social tolerance; sexual freedom; sexual need. It is offered to allocate three main groups of mutually conditioned motives to engaging in prostitution: psychological-emotional, image and socio-economic. It is noted that for today's Ukraine socio-economic motives are dominant.

Sartorio on Honor Crimes in Pakistan

P. Sartorio has posted an abstract of Qandeel Baloch’s Sacrifice – A Review on Pakistan’s Anti-Honor Crime Bill and Its Effectiveness as a Legal Tool to Safeguard Women from Honor Killings in Pakistan (INTERDISC. J. OF L. FORENSIC SCI., Vol. 2, Issue 1, 2017) on SSRN. Here is the abstract:

On July 15, 2016, 26-year-old Qandeel Baloch was asphyxiated by her brother, Waseem Azeem, while she was asleep in her parents’ home in Multan, Pakistan. Azeem confessed the murder on video and expressed no remorse, saying, "I am proud of what I did. I drugged her first, then I killed her. She was bringing disrespect to the family's honor". Her murder has divided the nation and made her an unlikely political icon. Her death also brought unwanted attention to the tradition practice of honor killings. According to Pakistani custom, perpetrators of honor killings can avoid punishment by seeking forgiveness for the crime from another family member, and thus be legally pardoned. In some rural parts of Pakistan, the male-dominated jirga, or tribal council, decides affairs without the participation of the perpetrator and its executive decisions are final taking primacy over state legislation. Although horrifying and appalling to most, this is not the exception, but the rule in Pakistan. According to the independent Human Rights Commission of Pakistan (HRCP), nearly 1,100 women were killed by relatives in Pakistan last year, while many more cases go unreported. In the summer of 2016, long-awaited legislation called the Anti-Honor Crime Bill was passed. Its purpose is to primarily tackle Pakistan’s loophole for perpetrators of honor killings. According to the new law, honor killings were now considered a crime against the State carrying a sentence of a minimum of 25 years to life imprisonment. Relatives can still forgive perpetrators in the case of a death sentence, but the perpetrator would still have to serve the minimum sentence. Judges no longer have the discretion to allow acquittals via the victim’s relatives’ pardon.

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Holden on Ghost-Fixing

John T. Holden (Oklahoma State University) has posted Ghosts in the Machine: How Corrupters Manipulate Games that Never Happened (22 Gaming Law Review 630 (2018)) on SSRN. Here is the abstract:

 

Lacking from the current state legislation has been a comprehensive plan to address sport corruption. Many states and the federal government are presently relying on antiquated statutes as a security against match-fixing. These measures are likely inadequate to prevent the modern iterations of match-fixing, which now extend well beyond the 1950s and 60s era bribery scandals. Match-fixing is now a sophisticated global menace, which uses both carrots and sticks to induce players, referees, coaches, and executives to manipulate contests. The global match-fixing menace is so sophisticated that it no longer requires actual teams or referees to do its bidding in some instances. So-called “ghost-fixing” or fixing of ghost games is a serious threat to the integrity of the betting market, which relies on reputation to attract customers, not unlike other financial markets.

Taylor on Majority Jury Verdicts n Australia

Greg Taylor (University of Adelaide - School of Law) has posted ‘Squizzy’ and the Cuckold: How Majority Jury Verdicts got their Australian Foothold ((2018) 45 Australian Bar Review) on SSRN. Here is the abstract:

 

Majority jury verdicts in criminal cases were introduced far earlier in South Australia than in most comparable places. A number of factors combined to produce this result: one was the South Australian Law Reform Commission of 1923–27, a body which can now be seen as ahead of its time despite the ridicule heaped upon it by Mr Justice Evatt because it was not staffed by lawyers. It uncovered and mobilised a substantial degree of support for majority verdicts among the leaders of the profession. In Victoria in the same decade there was a great deal of anxiety about jury squaring (rigging) based partly on rumours surrounding the notorious gangster ‘Squizzy’ Taylor. This spread to South Australia, and, unlike the Victorian, the South Australian legislature was in a position to take decisive action. Nevertheless, rumours of and even proof of jury squaring continued after majority verdicts were introduced.

Jiang on Wrongful Conviction Death Penalty Cases in China

Jue Jiang (New York University (NYU) - US-Asia Law Institute) has posted Legal and Political Rights Advocacy in Wrongful Conviction Death Penalty Cases in China: A Study of the Leping Case of Injustice (Columbia Journal of Asian Law, Vol. 29, Issue 2 (Spring 2016)) on SSRN. Here is the abstract:

 

The problem of wrongful conviction has become more widely acknowledged in China today. At the Third Session of the Twelfth National People's Congress held in March 2015, Zhou Qiang, chief justice of the Supreme People's Court, stated that they "feel a deep sense of self-blame for wrongful convictions." He demanded that courts at all levels "draw a profound lesson [and] improve the mechanisms for effectively preventing and correcting wrongful convictions." In the year of 2014, according to Zhou, Chinese courts had revised 1317 criminal cases, among which there were "a batch of major wrongful conviction cases"; Zhou then promised that they would "be responsible to the people and correct every single wrongful conviction case once it is found out." However, in judicial practice, for an individual to get a wrongful conviction corrected may not become any easier- drawing on a study of the Leping case of injustice, in which four defendants were convicted of rape and murder and sentenced to death for a crime they had not committed, this article discusses how the efforts of correcting it meet a deadlock in China's judicial system, and how, in this circumstance, Chinese civil society initiates and runs a network advocacy aiming at breaking the deadlock and advancing the correction.

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Jouet on Mass Incarceration Paradigm Shift?

Mugambi Jouet (McGill Faculty of Law) has posted Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

 

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies. Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term “cruel and unusual punishment” under the Eighth Amendment. By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice. Many scholars concluded that punitiveness had become its defining norm. 

Yet a quiet revolution in Eighth Amendment jurisprudence, a wave of reforms, and other social developments suggest that American penal philosophy may be inching toward norms — dignity, proportionality, legitimacy, and rehabilitation — that have checked draconian prison terms in Europe, Canada, and beyond.

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