CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, January 8, 2022

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Buying Data and the Fourth Amendment

University of California, Berkeley School of Law
303
2.

Preservation Letters and Fourth Amendment Seizures: A Response to Professor Kerr

University of Pennsylvania Carey Law School - Student/Alumni/Adjunct
172
3.

The Bailable v. Non-Bailable Classification in Indian Criminal Procedure

Delhi High Court
152
4.

Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System

John Jay College - CUNY Graduate Center and John Jay College - CUNY Graduate Center
136
5.

Grounding Legal Proof

Georgetown University Law Center
130
6.

The Tesla Meets the Fourth Amendment

William & Mary Law School
129
7.

Black Voices Matter Too: Counter-Narrating Smithers v The Queen

University of Manitoba - Faculty of Law
116
8.

Criminal Justice Secrets

Southern Methodist University - Dedman School of Law
103
9.

The Original Criminal Jury

Independent
97
10.

The Danger of Rigged Algorithms: Evidence from Immigration Detention Decisions

Stanford University, Department of Political Science
93

January 8, 2022 | Permalink | Comments (0)

Friday, January 7, 2022

Kaye on Hate Speech Regulation

David Kaye (University of California, Irvine School of Law) has posted The Troubled World of Hate Speech Regulation (Journal of Human Rights, 2022, forthcoming) on SSRN. Here is the abstract:
 
Three recent books enter the international debate over hate speech and human rights law, from a high-altitude affirmation of the underlying principles of freedom of expression and the contemporary headwinds it faces, to a specific evaluation in democratic transitions, to a legal and empirical assessment of how the speech crime of incitement to genocide has been muddled by international criminal tribunals. The work reviewed highlights the general confusion around the regulation of hate speech not just in the context of how values in speech and non-discrimination relate to one another in democratic societies. The confusion exists in the context of international criminal law as well. The essay also makes the case for growing commonality of norms in the international law governing civil and political rights and the elimination of all forms of racial discrimination.

January 7, 2022 | Permalink | Comments (0)

Touchet on Knives as Concealed Weapons

J. Alex Touchet has posted 'That's Not a Knife . . .' Or Is It? Virginia's Problematic Concealed Weapons Law (Regent University Law Review, Vol. 34, No. 2, 2022 Forthcoming) on SSRN. Here is the abstract:

In the 1986 film Crocodile Dundee, Australian outdoorsman Mick Dundee is approached by a young man who brandishes a switchblade and demands Dundee’s wallet. “He’s got a knife,” Dundee’s companion urges him. “That’s not a knife,” Dundee chuckles as he produces a much larger blade. “That’s a knife!” Virginia courts periodically deal with cases in which they must answer a similar question: whether a knife is a prohibited concealed weapon under Virginia law. Unfortunately, the answer to that question is not always as clear as it was to Mick Dundee. This Note addresses the treatment of switchblades and other knives in Virginia by state law, state legislators, and local law enforcement. Second, it reviews some of the perplexing cases in which Virginia courts have grappled with that law, and the resulting constitutional vagueness concerns. Third, it discusses whether the right to bear knives and other bladed weapons as “arms” is protected by the Second Amendment. Finally, it concludes by proposing solutions for the issues Virginia law poses to knife owners.

January 7, 2022 | Permalink | Comments (0)

Haber on Racial Recognition

Eldar Haber (University of Haifa - Faculty of Law) has posted Racial Recognition (Cardozo Law Review, Vol. 43, No. 1, 2021) on SSRN. Here is the abstract:
 
Recognition technology is becoming an increasingly important part of criminal law enforcement. With new developments in biometric identification and artificial intelligence, law enforcement agencies are increasingly positioned to identify culprits by algorithmically analyzing physiological and behavioral characteristics, such as faces, voices, or bodily gestures, of suspects and matching them to troves of data from various sources. While promising, the use of recognition technology, and more specifically facial recognition, negatively impacts human rights and liberties. As recognition technology has been systematically proven to be less accurate when identifying some cohorts, including black people, the use of recognition technology raises concerns of misuse and social control over marginalized and over-policed communities, especially black people, within what this Article coins as racial recognition, duplicating and amplifying structural inequities in society.

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January 7, 2022 | Permalink | Comments (0)

Thursday, January 6, 2022

Woog & Fennell on Texas Bail-Setting

Amanda Woog and Nathan Fennell (Texas Fair Defense Project and Texas Fair Defense Project) have posted Power and Procedure in Texas Bail-Setting (74 SMU L. Rev. 475 (2021)) on SSRN. Here is the abstract:
 
As advocates’, lawyers’, and legislators’ bail reform efforts intensify in Texas and throughout the country, we consider the limits of pretrial procedural protections when judges do not follow the law, access to courts is limited, and people do not have quality assistance of counsel. Given this reality in most bail-setting courts in Texas, formal procedural requirements, like mandating that bail-setting magistrates consider certain factors when making initial bail decisions, do not achieve their promise. More than a procedural or legal problem to be addressed, we consider the nation’s addiction to pretrial detention as one that was created by—and must be addressed through—exercises of social and political power. We identify ways that organizers are working to shift power in the pretrial context, encourage lawyers and activists alike to think about legal change in this arena as a necessary but not sufficient condition for meaningful reform, and hope to inspire further collaboration toward the power-shifting goals we see as necessary for long-term success.

January 6, 2022 | Permalink | Comments (0)

Eliot on Legal Volition, Mens Rea, and AI

Dr. Lance B. Eliot (Stanford Center for Legal Informatics) has posted Principles Of Legal Volition And Mens Rea As Applied To AI In The Law on SSRN. Here is the abstract:
 
There is an undoubtedly murky path concerning AI being held legally responsible for its presumed actions. Some assert that we ought to first consider the cornerstone principle of volition. On top of that grounding, we should also add the legal precept of mens rea. The whole combination then comes into better view and we can more mindfully consider what some say is strictly “unthinkable” about AI in the law.

January 6, 2022 | Permalink | Comments (0)

Perlin on Mental Disabilities, Alternative Jurisprudences, and Fairness

Michael L. Perlin (New York Law School) has posted 'I Hope the Final Judgment’s Fair': Alternative Jurisprudences, Legal Decision-Making, and Justice (The Cambridge Handbook of Psychology of Legal Decision-making (Monica Miller et al eds. 2022 Forthcoming)) on SSRN. Here is the abstract:
 
At the core of any legal decision is an assumption that the decision will be “fair,” yet this is an elusive term. A close study of cases involving criminal defendants with mental disabilities shows us that many (perhaps, most) of the decisions involving this cohort are not “fair” in the contexts of due process and justice. If legal decisions reflect principles such as procedural justice, restorative justice, and therapeutic jurisprudence, the chances of such fairness will be significantly enhanced.

Interestingly, the notion of “community sentiment” –urged as a potential solution to some of the underlying problems -- often has the exact reverse effect, and delegitimatizes the proceedings, relying as it often does on individuals false “ordinary common sense,” a factor that makes fair decisionmaking much more elusive.

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January 6, 2022 | Permalink | Comments (0)

Wednesday, January 5, 2022

Hetzel on Law and the Original Criminal Jury

Jeff Hetzel has posted The Original Criminal Jury on SSRN. Here is the abstract:

In early America, the criminal jury decided matters of law. The prosecutor and defense counsel read aloud to the jury from statutes, precedent, and treatises. The presiding judge instructed the jury that it had the power to decide matters of law. Then, the jury deliberated and rendered a verdict based on, among other things, its independent judgment about matters of law, whether that meant the common law, statutes, or the Constitution.

The legal world has for generations failed to recognize the power of the original criminal jury. Those who have not ignored the evidence of the jury’s power over matters of law have tended to interpret it as an early form of jury nullification, by which the jury could review the morality of the prosecution. But a careful examination of early practice reveals that the jury held no more power to nullify than it does today. Rather, the early American jury held the power to do what judges today are expected do—to decide what the law means without deciding its morality.

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January 5, 2022 | Permalink | Comments (0)

Alexander on Hip Hop and Criminal Enforcement

Taifha Alexander has posted Chopped & Screwed: Hip Hop from Cultural Expression to a Means of Criminal Enforcement (available at https://harvardjsel.com/wp-content/uploads/sites/9/2021/06/JSEL_ALEXANDER.pdf) on SSRN. Here is the abstract:

This article argues that officers, prosecutors and judges have erroneously utilized and misinterpreted Hip Hop to bolster society’s stereotypes of Black men as criminals unworthy of justice, which contributes to mass incarceration in the United States. Part I of this paper examines the mass incarceration of Black men in the United States. Part II suggests that criminal justice officials use Hip Hop to contribute to the mass incarceration of African American men in at least three ways. First, through admission of admitting rap lyrics into criminal proceedings against Black rappers. Second, through implicit biases that allow judges and police officers to hold inaccurate stereotypes against Black men because rap music sensationalizes Black men as drug dealers and abusers, which, third, contributes to many Black men being unjustly imprisoned. As a result, the perception of prison in the Black community has transformed from a form of punishment to a rite of passage. Part III of this paper suggests that the probative versus prejudicial test for admission of rap lyrics as evidence specific to a crime generally tips against the Black defendant. To demonstrate this point, the article analyzes two cases to highlight the low, oftentimes subjective, standard of the probative versus prejudicial test, which result in the inappropriate incarceration of Black men who utilized rap as a creative outlet.

January 5, 2022 | Permalink | Comments (0)

"The Death Penalty Continued Its Downward Trend in 2021"

From Reason, via NACDL's news-of-interest:

The authorities executed just 11 prisoners in 2021—the U.S.'s lowest total in recent history. It was the seventh consecutive year that fewer than 30 death row inmates were executed.

According to a December report published by the Death Penalty Information Center, we're also seeing big plunges in death sentences for those newly convicted of capital crimes. Only 18 people were sentenced to death last year, matching the number sentenced in 2020.

January 5, 2022 | Permalink | Comments (0)

Tuesday, January 4, 2022

Simson on A Community Initiative for Juvenile Justice

Gary J. Simson (Cornell University - Law School; Mercer University - Walter F. George School of Law) has posted A Community Initiative for Juvenile Justice: Why Not Your Community Too? (Juvenile Justice Update, vol. 27, no. 3, Fall 2021, pp. 5-10) on SSRN. Here is the abstract:
 
In the past decade, cities like Ferguson, Missouri and Cleveland, Ohio have become synonymous with the kind of tragic events that can befall a community that fails to take seriously the need to decrease tensions, and improve trust and cooperation, between police and youth. The author of this article served for seven years on the board of directors of a nonprofit well-known for its innovative programs of youth education and youth-focused police training. Living in a city with the ingredients seemingly in place for a Ferguson-like tragedy, the author organized a private initiative to raise the funds needed to bring those programs to the city. Although some communities can rely on state and local government funding to pay for such programs, many, like the one where the author resides, cannot. With an eye to providing a template for, and encouraging, other individuals to mount a similar initiative, the author recounts his strategies and their relative utility in the ultimately successful initiative that he headed.

January 4, 2022 | Permalink | Comments (0)

Eliot on Miscalculating Human Behavior Via Robo-Judges

Dr. Lance B. Eliot (Stanford Center for Legal Informatics) has posted The Dangers Of Miscalculating Human Behavior Via Robo-Judges on SSRN. Here is the abstract:
 
There has been a trend lately of suggesting that robot judges (so-called robo-judges) will be able to determine the guilt of a defendant by merely using state-of-the-art sensory devices to watch and hear the accused. Besides the questionable aspects of whether this can or should be done, it also misportrays what AI-based judge-related systems might genuinely provide as an added value to adjudication.

January 4, 2022 | Permalink | Comments (0)

"Crime to Sexually Proposition, Knowing It's Likely to Annoy, Offend, or Alarm"

Eugene Volokh has this post at The Volokh Conspiracy, quoting a Delaware statute and comparing it to a general provision on harassment requiring a heightened mental state.

January 4, 2022 | Permalink | Comments (0)

Monday, January 3, 2022

Sullivan on Mass Shootings and Tarasoff

J. Thomas Sullivan (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Mass Shootings, Mental 'Illness,' and Tarasoff (University of Pittsburgh Law Review, 82 U. Pitt. L. Rev. 685 (2021)) on SSRN. Here is the abstract:
 
The continuing public attention focused on acts of mass violence, including mass shootings, has understandably created significant concerns over the ability to protect individuals from death and injury attributable to these acts. At least two generalized explanations for this kind of violence have been put forward, based on the nature of the acts and apparent motivation of the perpetrators, who are often killed in the process by themselves or law enforcement officers. Many acts of mass violence are committed by individuals confirmed to be terrorists, acting with political or religious-political motivations. Others are assumed to be committed by individuals acting out of mental instability. For at least the latter, evidence of prior mental health problems or treatment affords support for the notion that mental health professionals may offer the potential for prevention in some cases or instances. While looking to the mental health professions for solutions to some cases of mass violence may seem logical and has resulted in legislative responses that recognize or create a duty for mental health professionals to warn or take other protective action to prevent injury to third persons, it is far from clear that this approach can be counted on to yield favorable results, and certainly not with respect to all, or even a majority of episodes of mass violence.

January 3, 2022 | Permalink | Comments (0)

Kelly & White on Criminalization of Substance Use Disorder

Brittany Kelly and Diana White (Indiana University Robert H. McKinney School of Law and affiliation not provided to SSRN) have posted Community Level Intervention Strategies to Confront the Criminalization of Substance Use Disorder: Cross-Sector Collaboration Along the Sequential Intercept Model Applying a Critical Race Theory Lens (Forthcoming, The Journal of Law in Society, Wayne State University Law School) on SSRN. Here is the abstract:
 
Among the medical community, substance use disorder is understood to be a disease of the brain, rather than a moral failing. Substance use disorder is a medical diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM), which is widely used by health care professionals. Even in light of this understanding, substance use disorder continues to be criminalized, with an estimated one-half of all people in prison in the United States meeting the criteria for substance use disorder. Alarmingly, someone enters the criminal justice system based on nothing more than an allegation of drug possession for personal use every twenty-five seconds in the United States.

Both substance use disorder and its criminalization have increased exponentially over the last few decades. Nationwide, the criminalization of substance use disorder has disparately impacted the Black community. These inequities are the result of longstanding systemic racism in the United States criminal justice system. Many advocates across multiple disciplines agree that decriminalization and legalization of substances is necessary. However, federal and state-level initiatives around decriminalization and legalization can be non-existent or slow moving, depending on the state.

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January 3, 2022 | Permalink | Comments (0)

Sunday, January 2, 2022

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Moral Panic and the War on Drugs

Lakehead University - Bora Laskin Faculty of Law
187
2.

A Restatement of Corporate Criminal Liability's Theory and Research Agenda

Duke University School of Law
64
3.

Deconstructing Victim and Offender Identities in Discourses on Child Sexual Abuse: Hierarchies, Blame and the Good/Evil Dialectic

Queen's University Belfast - School of Law
61
4.

Enforcement of Public Carry Restrictions: Texas as a Case Study

The Newberry Library
51
5.

Rape and Law in Medieval Western Europe

University of Bristol Law School
47
6.

Suffering at the Margins: Applying Disability Critical Race Studies to Human Trafficking in the United States

Columbia University, School of Law
44
7.

The Forlorn Hope: A Final Attempt to Storm the Fortress of Corporate Criminal Liability

Georgetown University - Robert Emmett McDonough School of Business
38
8.

The Day Canada Said No to the Death Penalty in the United States: Innocence, Dignity, and the Evolution of Abolitionism

McGill Faculty of Law
38
9.

Protecting the Homeless by Repealing the Vagrancy Act – Two Steps Forward; One Step Back

Queen's University Belfast - School of Law
36
10.

On the Law of Self-Defense (And Why Transparency About our Value-Judgments is the Missing Piece in Today's Justice Reform Debate)

University of OxfordUniversity of Colorado School of Law
34

January 2, 2022 | Permalink | Comments (0)

Saturday, January 1, 2022

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Buying Data and the Fourth Amendment

University of California, Berkeley School of Law
293
2.

Preservation Letters and Fourth Amendment Seizures: A Response to Professor Kerr

University of Pennsylvania Carey Law School - Student/Alumni/Adjunct
169
3.

The Bailable v. Non-Bailable Classification in Indian Criminal Procedure

Delhi High Court
149
4.

Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System

John Jay College - CUNY Graduate Center and John Jay College - CUNY Graduate Center
115
5.

Grounding Legal Proof

Georgetown University Law Center
111
6.

Black Voices Matter Too: Counter-Narrating Smithers v The Queen

University of Manitoba - Faculty of Law
100
7.

The Tesla Meets the Fourth Amendment

William & Mary Law School
98
8.

Criminal Justice Secrets

Southern Methodist University - Dedman School of Law
95
9.

The Danger of Rigged Algorithms: Evidence from Immigration Detention Decisions

Stanford University, Department of Political Science
90
10.

The response of illegal mining to revealing its existence

Universidad del Rosario - Faculty of Economics
81

January 1, 2022 | Permalink | Comments (0)

Friday, December 31, 2021

Nielson & Stancil on Cert-Proofing and Qualified Immunity

Aaron L. Nielson and Paul J. Stancil (Brigham Young University - J. Reuben Clark Law School and Brigham Young University, J. Reuben Clark Law School) have posted Civil Rights Litigation in the Lower Courts: The Justice Barrett Edition (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
 
Now that Justice Amy Coney Barrett has joined the United States Supreme Court, most observers predict the law will shift on many issues. This common view presumably contains at least some truth. The conventional wisdom, however, overlooks something important: the Supreme Court’s ability to shift the law is constrained by the cases presented to it and how they are presented. Lower courts are thus an important part of the equation.

Elsewhere, the authors have offered a model of certiorari to demonstrate how lower courts in theory can design their decisions to evade Supreme Court review; they also explain why such “cert-proofing” tools are problematic. In this Article, they apply that model to civil rights litigation involving qualified immunity, with particular focus on Justice Barrett’s confirmation.

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December 31, 2021 | Permalink | Comments (0)

Thursday, December 30, 2021

Eliot on AI and Effective Assistance

Dr. Lance B. Eliot (Stanford Center for Legal Informatics) has posted AI Anticipated Impacts On The Sixth Amendment Effective Counsel Provision on SSRN. Here is the abstract:
 
The U.S. Constitution mandates the assistance of legal counsel for criminal defendants. Meanwhile, relevant Supreme Court decisions have clarified that such legal counsel must be effective and that when legal counsel is ineffective there are opportunities to overturn case results. Consider how the question of effectiveness might be altered in an era of AI-based legal reasoning systems.

December 30, 2021 | Permalink | Comments (0)

Perlin on Dylan's "Hurricane" and Criminal Procedure

Michael L. Perlin (New York Law School) has posted “Pistol Shots Ring Out in the Barroom Night”: Bob Dylan's “Hurricane” as an Exam (or Course) in Criminal Procedure (American Journal of Criminal Law, Vol. 48, No. 2, 2021) on SSRN. Here is the abstract:
 
A lyrical analysis relevant to Criminal Procedure.

December 30, 2021 | Permalink | Comments (0)