CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse Paul H. Robinson and Lindsay Holcomb University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct Date Posted: 17 Aug 2021	88
2.	Black Lives Matter: Trayvon Martin, the Abolition of Juvenile Justice and #BlackYouthMatter Nancy E. Dowd University of Florida Levin College of Law Date Posted: 29 Jul 2021 [6th last week]	60
3.	Carceral Progressivism and Animal Victims Benjamin Levin University of Colorado Law School Date Posted: 01 Sep 2021 [2nd last week]	56
4.	Should be Marijuana Legalized in India? Mohd Rameez Raza Faculty of Law, Integral University Date Posted: 16 Aug 2021 [new to top ten]	49
5.	Amos Akerman: Grant's Attorney General Who Broke the Back of the Ku Klux Klan Allan A. Ryan Harvard University, Division of Continuing Education Date Posted: 27 Jul 2021 [3rd last week]	47
6.	Restorative Retributivism Brian Murray Seton Hall Law School Date Posted: 12 Aug 2021 [4th last week]	46
7.	Criminalizing Migration César Cuauhtémoc García Hernández Ohio State University College of Law Date Posted: 01 Jul 2021 [new to top ten]	41
8.	Editor's Introduction: New Topics in Sentencing Theory Jacob Bronsther Michigan State University - College of Law Date Posted: 11 Aug 2021 [5th last week]	41
9.	Permanent Name Suppression for a Child Convicted of Homicide Nessa Lynch Victoria University of Wellington - Faculty of Law Date Posted: 19 May 2020 [7th last week]	34
10.	The Transnational Cybercrime Extortion Landscape and the Pandemic: Changes in Ransomware Offender Tactics, Attack Scalability and the Organisation of Offending David S. Wall Centre for Criminal Justice Studies, School of Law, University of Leeds Date Posted: 31 Aug 2021 [new to top ten]

 

 

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Inside the Black Box of Prosecutor Discretion Megan S. Wright, Shima Baradaran Baughman and Christopher T. Robertson The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University Date Posted: 28 Jul 2021 [3rd last week]	325
2.	The Trump Executions Lee Kovarsky University of Texas School of Law Date Posted: 27 Jul 2021 [1st last week]	294
3.	Truth, Lies and The Paradox of Plea Bargaining Thea Johnson Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 29 Jun 2021 [2nd last week]	258
4.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021 [new to top ten]	223
5.	Content Moderation as Surveillance Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 30 Jun 2021 [4th last week]	217
6.	Policing Suspicion: Qualified Immunity and 'Clearly Established' Standards of Proof Seth W. Stoughton, Kyle McLean, Justin Nix and Geoffrey Alpert University of South Carolina School of Law, Clemson University, University of Nebraska Omaha and University of South Carolina Date Posted: 09 Jul 2021 [new to top ten]	85
7.	Sex Offender Registration and Community Notification Laws: An Empirical Evaluation Wayne A. Logan and J.J. Prescott Florida State University - College of Law and University of Michigan Law School Date Posted: 30 Jun 2021 [new to top ten]	81
8.	Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 25 Jun 2021 [5th last week]	76
9.	Transparency's AI Problem Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 08 Jul 2021 [6th last week]	74
10.	Challenging Jurors' Racism Monnica Williams, Sonya Faber, Dana Strauss, Sophia Gran-Ruaz, Amy Bartlett, Maria Macaluso, Joseph La Torre and Ariana R. Levinson University of Ottawa - Department of Psychology, Angelini Pharma, University of Ottawa, Students, University of Ottawa, Students, University of Ottawa, Students, University of Louisville, Louis D. Brandeis School of Law, Students, University of Ottawa, Students and University of Louisville - Louis D. Brandeis School of Law Date Posted: 11 Aug 2021 [7th last week]	69

Coker on Restorative Responses to Intimate Partner Violence

Donna Coker (University of Miami School of Law) has posted an abstract of Restorative Responses to Intimate Partner Violence (in COMPARATIVE DISPUTE RESOLUTION 46 (Maria Federica Moscati, Michael Palmer, & Marian Roberts eds. 2020), Edward Elgar Publishing) on SSRN. Here is the abstract:

 

Intimate partner violence (IPV) cases are routinely seen in restorative justice (RJ) programs in a number of countries. I provide a comparative analysis of these programs as well as programs in the U.S. (I am unaware of any other comparable international comparison of RJ IPV programs.) Though RJ use in IPV cases remains controversial, feminist interest in the potential for RJ has increased significantly. This interest is prompted, in part, by the development of specialized programs equipped to address IPV. These programs include substantial preparation, safety planning with survivors, and the provision of resources for both the person who was harmed and the person who caused harm. In addition, programs in countries with an adversarial legal system must ensure that statements made in the RJ process are not admissible in future criminal or civil actions. U.S. feminist interest in restorative responses is also prompted by a growing disenchantment with the dominant crime-centered response to IPV and recognition of the ways in which feminist-inspired gender violence policy has contributed to mass incarceration. The collateral consequences of even a misdemeanor domestic violence conviction are substantial and involvement with the criminal system threatens the wellbeing of survivors, especially those who are members of racially subordinated communities. A restorative approach allows survivors a meaningful voice, disrupts social supports for IPV, and avoids simplistic “crime logic” reasoning whereby an understanding of multiple determinants of behavior is replaced with a simplistic understanding of moral agency.

Jordanoska & Lord on Benchmark Manipulation and the "Guardian" Paradox

Aleksandra Jordanoska and Nicholas Lord (King's College London - The Dickson Poon School of Law and University of Manchester) have posted Scripting the Mechanics of the Benchmark Manipulation Corporate Scandals: The ‘Guardian’ Paradox (European Journal of Criminology. 2020;17(1):9-30) on SSRN. Here is the abstract:

 

This article implements a crime script analysis to understand the procedural dynamics of corporate benchmark-rigging in the financial services industry. In 2012 several global banks were implicated in the manipulation of various trading benchmarks, portraying the industry as affected by serious, pervasive and ‘organized’ corporate crimes. Yet their dynamics have been relatively little studied by criminologists. To address this gap, we analyse official enforcement documentation, supplemented with data from interviews with key informants in the UK financial markets. We analyse the range of interactions between the relevant actors, their actions and the resources essential to the manipulations, and deconstruct the benchmark manipulations into four scenes (calculated positioning and identification of co-collaborators; recruitment; (ephemeral) manipulation; recompense and solicitation). The analysis reveals that regulatory and organizational systems play a paradoxical role of both ‘capable guardians’ and ‘facilitators of misconduct’; this has implications for criminological theory.

Clark et al. on Brutal Policing as an Adverse Childhood Experience

Todd Clark, Caleb Gregory Conrad, andré douglas pond cummings and Amy Dunn Johnson (St. Thomas University School of Law, University of Arkansas at Little Rock - William H. Bowen School of Law, University of Arkansas at Little Rock - William H. Bowen School of Law and 15th Division, 6th Judicial District of Arkansas) have posted Meek Mill's Trauma: Brutal Policing as an Adverse Childhood Experience (33 St. Thomas L. Rev. 158 (2021)) on SSRN. Here is the abstract:

 

Meek Mill’s life and career have been punctuated by trauma, from his childhood lived on the streets of Philadelphia, through his rise to fame and eventual arrival as one of hip hop’s household names. his 2018 track "Trauma," Meek Mill describes, in revealing prose, just how the traumatic experiences he endured personally impacted and harmed him. He also embodies a role as narrator in describing the same traumas and harms that impact the daily lives of countless similarly situated young Black people in the United States. As a child, Mill’s lived experience was one of pervasive poverty and fear, as the world surrounding him consisted of large-scale poverty, addiction, crime, violence, and death. As a young man—at just 19 years of age—he was beaten by police, wrongfully arrested and incarcerated, and ultimately convicted of crimes that he did not commit, becoming another statistic as a young Black man swallowed by the American criminal justice system. Meek’s story, lyrics and contributions to hip hop illuminate the Black experience with law enforcement. His personal involvements provide a powerful narrative for exactly how a racially biased criminal justice system perpetrates a trauma that extends far greater than the law has traditionally recognized. This article highlights this narrative through the lens that Meek Mill provides because of his current prominence in hip hop and the importance of his narrative claims. Despite his success in achieving the status of a true hip hop icon, Meek Mill suffered the kind of childhood adversity and trauma that emerging health care research indicates leads to debilitating health outcomes in adulthood.

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Washington on The Family Regulation System

S. Lisa Washington (University of Wisconsin Law School) has posted Survived & Coerced: Epistemic Injustice in the Family Regulation System (Columbia Law Review (Forthcoming 2022)) on SSRN. Here is the abstract:

 

Calls to defund the police in the summer of 2020 were quickly followed by calls to fund social service agencies. Some included the funding of the family regulation apparatus. These demands fail to consider the shared carceral logic of the family regulation and criminal legal system. I utilize the term family regulation system to more accurately describe the surveillance apparatus that is commonly referred to as the "child welfare system". By using this term, I highlight that the family regulation system not only intersects with but mirrors the criminal legal system. The general premise of the family regulation system is that it is non-adversarial and rehabilitative, geared towards child safety. In practice, involved parents, including survivors of domestic violence, encounter an intrusive, disempowering surveillance system. The removal of children and extensive supervision mechanisms operate as powerful coercion tools, especially for survivors, who may find the state actively engaging in unwanted family separation. Family regulation cases, which already disproportionately affect Black and Brown families, further perpetuate the subjugation of marginalized experiences. Survivor narratives that do not align with the expectations of the family regulation system are discredited and instrumentalized to justify family separation, and even the termination of parental rights.

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Tinto & Roberts on Compassion After COVID

Katie Tinto and Jenny Roberts (University of California, Irvine School of Law and American University - Washington College of Law) have posted Expanding Compassion Beyond the COVID-19 Pandemic (Ohio State Journal of Criminal Law, Vol. 18, No. 2, 2021) on SSRN. Here is the abstract:

 

Compassionate relief matters. It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children. It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences. It matters even when no crisis looms, but simply when continued incarceration would be “greater than necessary” to achieve the ends of justice.

Hargreaves on Hong Kong's National Security Law

Stuart Hargreaves (The Chinese University of Hong Kong (CUHK) - Faculty of Law) has posted Past as Prologue: Intercept and Surveillance Rules Under Hong Kong's National Security Law ((2021) 20 Santa Clara Journal of International Law) on SSRN. Here is the abstract:

 

In response to civil unrest in 2019, in 2020 Beijing directly applied a new National Security Law to Hong Kong. Part of this law established a new system of rules for the authorisation of communications intercepts and covert surveillance in the context of certain national security offences. Interestingly, this new scheme looks in many ways like a prior system that was deemed unconstitutional by a Hong Kong court in 2006: it centralises authorization authority in the executive branch and there is little external oversight of the process. The paper argues that the new system of rules regarding covert surveillance of national security suspects and the interception of their communications is more than just a mechanism to ease the detection of national security threats, however. It is a symbolic reaffirmation that notwithstanding the guarantee of judicial independence under the Basic Law, that independence will never extend to checking state interests. It is a clear example of the Central Authorities’ intent to exercise ‘comprehensive jurisdiction’ over Hong Kong through the office of the Chief Executive, who it has recently described as holding a ‘transcendent’ position over the three branches of the local government.

Mills on Insanity and Delusions

Michael Mills has posted Insanity Step Zero: A Modern Application of M’Naghten’s Question Four Test (Cornell Law Review, Vol. 107, No. 4, 2022) on SSRN. Here is the abstract:

Defendants suffering from delusion currently are subject to inequitable treatment in our criminal justice system. They can genuinely believe, due to a delusion, that a person right in front of them has a gun and is about to kill them. Acting in what they believe is self-defense, they can draw a gun and kill their would-be assailant. Many in their same situation, facing what they believe to be an imminent threat against their life with no ability to escape, would do the exact same thing. In fact, the law in all fifty states would allow a defendant actually facing such a threat to raise a self-defense claim. However, under many states’ laws, the delusional defendant still will be found guilty of murder. Mistake of fact doctrines generally require mistakes to be reasonable, so the defendant will not be entitled to a self-defense claim because delusions are inherently unreasonable. Yet, only seven states have insanity defenses that explicitly account for delusions. Thus, the jury may still find them guilty under that jurisdiction’s insanity test. This creates a paradox: defendants are too insane to qualify for the mistake of fact doctrine, yet too sane to escape punishment under the insanity defense. This paradox has become increasingly prevalent in recent years, as many jurisdictions seek to abolish or modify their insanity tests—often leaving defendants suffering from delusions behind in the process.

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Wall on Ransomware Offenders

David S. Wall (Centre for Criminal Justice Studies, School of Law, University of Leeds) has posted The Transnational Cybercrime Extortion Landscape and the Pandemic: Changes in Ransomware Offender Tactics, Attack Scalability and the Organisation of Offending (European Law Enforcement Research Bulletin 2021) on SSRN. Here is the abstract:

 

The sudden disruption of work, recreation and leisure practices caused by the COVID-19 lockdown caught many organisations and their employees unaware, especially during the move towards working from home. This led adaptive cybercriminals to shift their own focus towards home workers as a way into organisational networks. The upshot was a massive acceleration in major cyberattacks upon organisations and a noticeable shift in offender tactics which scale up levels of fear in victims to encourage payment of the ransom. Such tactics include a shift towards naming and shaming victims, the theft of commercially sensitive data and attacks targeting organisations which provide services to other organisations. These developments have also led to changes in the organisation of offenders online. Such attacks negatively impact upon national and international economies as they try to recover from lockdown. Drawing upon an analysis of 4000+ cases of ransomware attacks collected for the EPSRC EMPHASIS & CRITICAL research projects, this paper charts the evolution of ransomware as a modern cybercrime and changes in the organisation of cyber-criminals as well as highlighting some of the implications for transnational policing.

Buell on Corporate Crime

Samuel W. Buell (Duke University School of Law) has posted Corporate Crime: An Introduction to the Law and its Enforcement (Open-Source Textbook (2021)) on SSRN. Here is the abstract:

 

This download provides sample excerpts of a new flexible textbook in the field of corporate crime and enforcement. The materials are drawn from the intersection of corporate and criminal law and from contemporary developments in enforcement practice. The complete text and individual chapters are available for free in pdf at buelloncorporatecrime.com, which also provides links for ordering a low-cost bound hard copy. Coverage includes corporate liability, fraud, obstruction of justice and related offenses, FCPA, insider trading, health care crimes, securities enforcement, criminal procedure in the white-collar context, plea bargaining and settlements, sentencing, attorney-client privilege and ethics, and more. The website includes sample syllabi and exam questions. The text, up to date as of summer 2021, includes many documents drawn from enforcement actions that illustrate the field’s current practice and provide deep factual examples for analysis and discussion. In addition, most sections conclude with problems for students and other readers to discuss or work through independently. The textbook is published under a Creative Commons license through a self-publishing platform.

Westbrook on Ransomware Payments

Amy Westbrook (Washburn University School of Law) has posted A Safe Harbor for Ransomware Payments: Protecting Stakeholders, Hardening Targets, and Defending National Security (New York University Journal of Law and Business, Forthcoming) on SSRN. Here is the abstract:

 

The United States is under ransomware siege. Victims range from small municipalities to non-profits to multi-national corporations and governments. The law is struggling to respond.

Few entities, crippled by a ransomware attack, can refuse to pay. Not paying the ransom may result in significant harm, including financial ruin or even loss of life. Paying a ransom, however, is likely to generate attacks on other targets. Paying may not even lead to recovery of the data as promised.

By definition, paying ransoms transfers value to criminals, and that is against many laws. But more than simple illegality is at issue. While ransomware hackers may be lone criminals or infamous cyber-gangs, they may also be hostile foreign countries, or non-state actors such as terrorist groups. Ransomware and other digital threats have the potential to compromise U.S. critical infrastructure.

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Coleman on Measuring Police Body Camera Infrastructure

Ronald J. Coleman (Georgetown University Law Center) has posted Measuring Police Body Camera Infrastructure (Forthcoming, Santa Clara Law Review Volume 62) on SSRN. Here is the abstract:

 

Police body cameras have been in ascendancy since at least the 2014 deaths of Eric Garner and Michael Brown, and body cameras are poised to play an increasing role in law enforcement following the more recent deaths of George Floyd, Daunte Wright, and others. Indeed, President Biden, himself, has repeatedly called for passage of the George Floyd Justice in Policing Act of 2021, which would require federal law enforcement officers to wear a body camera. Notwithstanding their ascendancy, important empirical questions on body cameras persist. For instance, do local law enforcement agencies have adequate infrastructure to support body camera programs? If not, what areas should policy-makers target in order to increase the adequacy of local agency infrastructure? And, are certain groups of agencies doing better with body camera infrastructure than others? Answering these and related questions requires accurate measurement of phenomena that are extremely challenging to measure. This Article presents what appears to be a first-of-its-kind multidimensional measure of local U.S. law enforcement body camera infrastructure: the Police Body Camera Infrastructure Index (“BCII”). Analysis of the BCII offers three primary contributions. First, it provides a broad summary of over 1,100 local agencies’ inadequacy in body camera infrastructure based on a large-N dataset. Second, it isolates the specific factors which drive agency inadequacy. Third, since countrywide averages have the potential to mask important differences across agencies, it reveals the position of certain agency subgroups based on size and location. It is hoped that this Article will inform policy-makers and local stakeholders in improving body camera programs, highlight the value of measurement in formulating such policy decisions, and spur continued research into body camera programs.

Miller on Wrongful Convictions and Grand Juries

Colin Miller (University of South Carolina School of Law) has posted Rectifying Wrongful Convictions Through the Dormant Grand Jury Clause (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In 1995, Lamar Johnson was convicted of a murder in St. Louis. Twenty-two years later, St. Louis Circuit Attorney Kimberly Gardner created a Conviction Integrity Unit (CIU) to review possible wrongful convictions. After reviewing Johnson’s case, the CIU concluded that Johnson was innocent. Then, consistent with her special responsibility as a prosecutor to seek to remedy wrongful convictions, Gardner filed a motion for a new trial. The court, however, denied the motion, holding that there was no enabling legislation in Missouri authorizing CIUs to seek relief for wrongful convictions. Gardner is not alone in her inability to rectify wrongful convictions. While the number of CIUs has increased, most jurisdictions still do not have such a unit, and several CIUs exist in states that, like Missouri, lack enabling legislation.

Conversely, it has perhaps never been easier for prosecutors to commence criminal proceedings that culminate in wrongful convictions. The Fifth Amendment Grand Jury Clause provides that no person shall be subjected to a trial for felony charges unless there is a grand jury presentment or indictment. The grand jury’s historical mission was “to clear the innocent, no less than to bring to trial those who may be guilty,” and yet grand juries now return indictments in approximately 99% of cases. Meanwhile, the use of presentments waned in the wake of the Civil War and was effectively declared dead in the criminal charging context in 1946. Historically, however, grand jury presentments were used not only to accuse wrongdoers of criminal behavior but also to call attention to issues of public concern. With the demise of presentments in the criminal charging context, this other historical function of the grand jury has largely fallen into disuse.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply. 

Rank	Paper	Downloads
1.	Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse Paul H. Robinson and Lindsay Holcomb University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct Date Posted: 17 Aug 2021	82
2.	Carceral Progressivism and Animal Victims Benjamin Levin University of Colorado Law School Date Posted: 01 Sep 2021 [new to top ten]	51
3.	Amos Akerman: Grant's Attorney General Who Broke the Back of the Ku Klux Klan Allan A. Ryan Harvard University, Division of Continuing Education Date Posted: 27 Jul 2021	43
4.	Restorative Retributivism Brian Murray Seton Hall Law School Date Posted: 12 Aug 2021 [2nd last week]	43
5.	Editor's Introduction: New Topics in Sentencing Theory Jacob Bronsther Michigan State University - College of Law Date Posted: 11 Aug 2021 [4th last week]	39
6.	Black Lives Matter: Trayvon Martin, the Abolition of Juvenile Justice and #BlackYouthMatter Nancy E. Dowd University of Florida Levin College of Law Date Posted: 29 Jul 2021 [new to top ten]	39
7.	Permanent Name Suppression for a Child Convicted of Homicide Nessa Lynch Victoria University of Wellington - Faculty of Law Date Posted: 19 May 2020 [6th last week]	34
8.	The Analysis of Computer Crimes Act 1997 in the Circumvention and Prevention of Computer Crimes in Malaysia Nooraneda Laidey Asia Pacific University of Technology and Innovation Date Posted: 23 Jul 2021 [9th last week]	27
9.	Regulation as Punishment Hadassa Noorda University of Amsterdam Date Posted: 08 Jul 2021 [new to top ten]	23
10.	The Model Penal Code & Sex Work Criminalization Derek Demeri Zeff Law Firm Date Posted: 19 Aug 2021 [8th last week]	21

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Trump Executions Lee Kovarsky University of Texas School of Law Date Posted: 27 Jul 2021	259
2.	Truth, Lies and The Paradox of Plea Bargaining Thea Johnson Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 29 Jun 2021	256
3.	Inside the Black Box of Prosecutor Discretion Megan S. Wright, Shima Baradaran Baughman and Christopher T. Robertson The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University Date Posted: 28 Jul 2021 [4th last week]	228
4.	Content Moderation as Surveillance Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 30 Jun 2021 [3rd last week]	211
5.	Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives Olwyn Conway The Ohio State University Moritz College of Law Date Posted: 25 Jun 2021	74
6.	Transparency's AI Problem Hannah Bloch-Wehba Texas A&M University School of Law Date Posted: 08 Jul 2021	65
7.	Challenging Jurors' Racism Monnica Williams, Sonya Faber, Dana Strauss, Sophia Gran-Ruaz, Amy Bartlett, Maria Macaluso, Joseph La Torre and Ariana R. Levinson University of Ottawa - Department of Psychology, Angelini Pharma, University of Ottawa, Students, University of Ottawa, Students, University of Ottawa, Students, University of Louisville, Louis D. Brandeis School of Law, Students, University of Ottawa, Students and University of Louisville - Louis D. Brandeis School of Law Date Posted: 11 Aug 2021	64
8.	Talking Back in Court Eve Hanan University of Nevada, Las Vegas, William S. Boyd School of Law Date Posted: 20 Jul 2021	54
9.	Masterpiece or Mess: The Mosaic Theory of the Fourth Amendment Post-Carpenter Robert Fairbanks University of California, Berkeley, School of Law, Date Posted: 18 Aug 2021 [new to top ten]	42
10.	Objective Chance and the Rule against Character Evidence Hillel J. Bavli Southern Methodist University - Dedman School of Law Date Posted: 09 Jul 2021 [new to top ten]	40

Mears on Compulsory Unlocking of Secured Smartphones

John Mears has posted Letting Your Phone Testify: Why the Fifth Amendment Should Be An Absolute Bar to Compulsory Unlocking of Secured Smartphones (Journal of Law and Technology at Texas (JOLTT) 2021) on SSRN. Here is the abstract:

Issues often arise when a defendant or witness in a civil or criminal case assert their Fifth Amendment right to be free from self-incrimination when asked to unlock their smartphone. A substantial disagreement has arisen in state and federal courts across the nation as to the extent of the Fifth Amendment's protection of secured smartphones. Two major issues arising from Fifth Amendment jurisprudence are involved in judicial considerations of this issue: whether the communication of the passcode is "testimonial" and, if it is, whether it can be allowed under the "foregone conclusion" doctrine. Additionally, the application of law in these areas has differed between cases involving biometric authentication and passcode authentication methods. This article addresses the differing case law in these areas, and makes an argument that the fifth amendment should be an absolute bar to forcing individuals to unlock their devices. Instead, the government should use the multitude of tools businesses offer to gain access to encrypted information.

Oliver & Kugler on Police Department Surveillance Technologies

Mariana Oliver and Matthew B. Kugler (Northwestern University, Pritzker School of Law and Northwestern University - Pritzker School of Law) have posted Surveying Surveillance: A National Study of Police Department Surveillance Technologies on SSRN. Here is the abstract:

 

Discussions of surveillance practices within U.S. law enforcement agencies often suggest that police departments have ready access to a wide range of high-tech tools. To date, however, most of the empirical evidence regarding police surveillance has come from either qualitative case studies of cities or surveys of the largest departments. While these studies have led to important insights into the surveillance capacities of large police departments located in larger jurisdictions, our current understanding of police surveillance is limited by a lack of empirical data on police departments in smaller jurisdictions. This study fills this gap by using data from an original nationwide survey of police departments. First, we discuss existing studies of police surveillance access and the legal regimes underlying each type of technology. Next, we use descriptive statistics to empirically investigate the variation in police access to surveillance tools when we account for differences in jurisdiction type. Our findings suggest that rates of police access vary widely depending on the type of technology and jurisdiction size. Overall access to and use of cell phone location tracking far outpaces access to facial recognition and Stingray devices. We discuss these findings and their implications for civil rights and liberties and the state of mass surveillance more generally.

Henderson & Brennan-Marquez on Search and Seizure Ceilings

Stephen E. Henderson and Kiel Brennan-Marquez (University of Oklahoma - College of Law and University of Connecticut - School of Law) have posted Search and Seizure Ceilings on SSRN. Here is the abstract:

 

Searches and seizures—the most intrusive forms of policing—should be subject to both case-specific and categorical restraints. Particularized suspicion has long supplied the former. As for the latter, we propose that police should also be required to adhere to budgetary ‘ceilings’: aggregate limits on the volume of searches and seizures that may occur over a given period of time.

Ceilings would vindicate two bedrock limits on police power. The first is constitutional. Viewed in light of its historical paradigm case—the abolition of general warrants—the Fourth Amendment does not merely impose a (procedural) cause requirement on police; it also, we argue, outlines a (substantive) vision of limited police capacity. Ceilings can help to enforce that vision. The second principle is democratic oversight. Ceilings would directly express political will about the proper level of intrusive policing—the balance favored by different communities reflecting tradeoffs between the benefits and harms of police activity. Operating in tandem with suspicion requirements, ceilings can shore up the ideal of ‘democratic policing,’ offering a policy lever resilient to technological change.

Logan on Geography, Reasonable Suspicion, and Drug Legalization

Wayne A. Logan (Florida State University - College of Law) has posted Geography and Reasonable Suspicion in Auto Stops (Northern Kentucky Law Review, Vol. 48, 2021) on SSRN. Here is the abstract:

 

In metaphor and reality, hitting the open road has long figured in the American way of life. Well before Bruce Springsteen’s paean to the open road “Born to Run” topped the charts, Americans used their cars to explore the nation’s expanses and to secure a better life. The diversity of state normative views they encountered in their travels has been and remains a hallmark of the nation’s decentralized federalist system.

Decentralized political communities, however, can cause stresses, one of which this essay addresses. Today, eighteen states have legalized the purchase, possession and recreational use of marijuana, and another thirty-six have legalized its medical use. Aggregated, the population of the legalization states alone constitutes a significant proportion of the U.S. population.

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