CrimProf Blog

Davidson on International Lessons Regarding Rape Law

Caroline Davidson (Willamette University - College of Law) has posted Rape in Context: Lessons for the United States from the International Criminal Court (Cardozo Law Review, Vol. 39, No. 1191, 2018) on SSRN. Here is the abstract:

 

The law of rape is getting a rewrite. Domestically and internationally, major efforts are underway to reform rape laws that have failed to live up to their promises of seeking justice for victims and deterring future sexual violence. The cutting edge of international criminal law on rape eschews inquiries into consent and instead embraces an examination of coercion or a coercive environment. By contrast, in the United States, rape reform discussions typically center on consent. The American Law Institute’s proposed overhaul of the Model Penal Code’s provision on sexual assault carves out a middle ground and introduces, in addition to the traditional crime of forcible rape, separate sexual assault offenses based on coercion and lack of consent. This Article compares these two trajectories of rape reform and asks whether, as Catharine MacKinnon has suggested, U.S. law ought to follow the lead of international criminal law and define rape in terms of coercive inequalities. Ultimately, this Article concludes that adopting the international criminal coercion test in U.S. rape law would do more harm than good. Instead, it outlines more modest, but workable, lessons the United States can learn from the international law of rape.

Diamond & Rose on Juries

Shari Seidman Diamond and Mary R. Rose (Northwestern University, School of Law & American Bar Foundation and University of Texas at Austin - Department of Sociology) have posted an abstract of The Contemporary American Jury (Annual Review of Law and Social Science, Vol. 14, pp. 239-258, 2018) on SSRN. Here is the abstract:

 

The contemporary American jury is more inclusive than ever before, although multiple obstacles continue to make racial and ethnic representation a work in progress. Drastic contraction has also occurred: The rate of jury trials is at an all-time low, dampening the signal that jury verdicts provide to the justice system, reducing the opportunity for jury service, and potentially threatening the legitimacy of judgments. At the same time, new areas of jury research have been producing important explanations for how the jury goes about reaching its verdict in response to challenging questions, like how to assess damages. Yet the persistent focus on individual juror judgments as opposed to decision making by the jury as a group leaves unanswered important questions about how jury performance is influenced by a primary distinctive feature of the jury: the deliberation process.

Brayne on Law Enforcement Implications of Big Data

Sarah Brayne (University of Texas at Austin) has posted The Criminal Law and Law Enforcement Implications of Big Data (Annual Review of Law and Social Science, Vol. 14, pp. 293-308, 2018) on SSRN. Here is the abstract:

 

Law enforcement agencies increasingly use big data analytics in their daily operations. This review outlines how police departments leverage big data and new surveillant technologies in patrol and investigations. It distinguishes between directed surveillance—which involves the surveillance of individuals and places under suspicion—and dragnet surveillance—which involves suspicionless, unparticularized data collection. Law enforcement's adoption of big data analytics far outpaces legal responses to the new surveillant landscape. Therefore, this review highlights open legal questions about data collection, suspicion requirements, and police discretion. It concludes by offering suggestions for future directions for researchers and practitioners.

Hamilton on Hispanics and the Biased Algorithm

Melissa Hamilton (University of Surrey School of Law) has posted The Biased Algorithm: Evidence of Disparate Impact on Hispanics (56 AM. CRIM L. REV. Forthcoming) on SSRN. Here is the abstract:

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety. Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities. Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

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Joy & Uphoff on Sentencing Reform

Peter A. Joy and Rodney J. Uphoff (Washington University in St. Louis - School of Law and University of Missouri School of Law) have posted Sentencing Reform: Fixing Root Problems (University of Missouri-Kansas City Law Review, Vol. 87, No. 1, 2018) on SSRN. Here is the abstract:

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.

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Tofangsaz on Terrorist Financing

Hamed Tofangsaz (University of Waikato - Faculty of Law, Students) has posted The Offence of Terrorist Financing; Why Does It Go Wrong? (International Criminal Law Review, 2018, Volume 18, Issue 5, pp. 822-852) on SSRN. Here is the abstract:

 

The international convention on terrorist financing and Western-backed international organizations have found the financing of terrorism serious enough to criminalize it as an independent offence. While the offence has a preparatory nature, its criminalization as an independent offence expands the boundary of criminal liability beyond existing notions of criminalization. This paper aims at examining the justifiability of the terrorist financing offence with regard to the principles and values on which liberal criminal law is based. Liberal criminal law has been chosen because the idea of the criminalization of terrorist financing was issued and developed mainly by Western liberal states. The paper narrowly discusses the issue in the context of Anglo-American criminal law.

Orenstein on Prosecutors and Debunked Science

Aviva Orenstein (Indiana University Maurer School of Law) has posted Debunked, Discredited, but Still Defended: Why Prosecutors Resist Challenges to Bad Science and Some Suggestions for Crafting Remedies for Wrongful Conviction Based on Changed Science (Seton Hall Law Review, Vol. 48, 2018) on SSRN. Here is the abstract:

 

Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. This article explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting the authority of experts or questioning long-accepted courtroom traditions. Thus, many judges and prosecutors cling to established legal precedent even when the underlying science has been discredited.

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Cyphert on Children of Prisoners

Amy Cyphert (West Virginia University - College of Law) has posted Prisoners of Fate: The Challenges of Creating Change for Children of Incarcerated Parents (Maryland Law Review, Vol. 77, 2018) on SSRN. Here is the abstract:

 

Children of incarcerated parents, the invisible victims of mass incarceration, suffer tremendous physical, psychological, educational, and financial burdens—detrimental consequences that can continue even long after a parent has been released. Although these children are blameless, policy makers, judges, and prison officials in charge of visitation policies have largely overlooked them. The United States Sentencing Commission Guidelines Manual explicitly instructs judges to ignore children when fashioning their parents’ sentences, and judges have largely hewed to this policy, even in the wake of the 2005 United States v. Booker decision that made those Guidelines merely advisory, not mandatory. Although some scholars have suggested amending the Guidelines or making other legislative changes that would bring children’s interests forward at the sentencing phase, these suggestions are less likely than ever to bear fruit.

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Hutchinson on Black Punitiveness

Darren Lenard Hutchinson (University of Florida - Levin College of Law) has posed Who Locked Us Up? Examining the Social Meaning of Black Punitiveness (127 Yale L.J. 2388 (2018)) on SSRN. Here is the abstract:

 

Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public. Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being. The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow. In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates that many blacks supported aggressive anticrime policies that gave rise to mass incarceration. On the surface, this observation potentially complicates arguments that conceive of U.S. criminal law and enforcement as manifestations of white supremacist political power. Forman’s failure to provide a comprehensive analysis of the racist dimensions of punitive sentiment makes his research subject to such an interpretation. A deeper analysis, however, reconciles Forman’s research with antiracist accounts of U.S. crime policy.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Robot Criminals Ying Hu Yale University, Law School Date Posted: 26 Aug 2018	188
2.	Lies, Deceit, and Bullshit in Law Lawrence M. Solan Brooklyn Law School Date Posted: 05 Sep 2018	125
3.	Online Child Sexual Exploitation: Towards an Optimal International Response Victoria Baines Bournemouth University - School of Computing Date Posted: 11 Sep 2018	121
4.	Execution by Nitrogen Hypoxia: The Search for Scientific Consensus Kevin Morrow Independent Date Posted: 29 Sep 2018 [5th last week]	92
5.	Poor Wesley Hohfeld Peter K. Westen University of Michigan Law School Date Posted: 13 Oct 2018 [4th last week]	91
6.	Neurohype and the Law: A Cautionary Tale Stephen Morse University of Pennsylvania Law School Date Posted: 06 Sep 2018	82
7.	Nondelegation and Criminal Law Brenner Fissell Hofstra University - Maurice A. Deane School of Law Date Posted: 24 Oct 2018 [new to top ten]	71
8.	Ipeelee and the Duty to Resist Marie-Eve Sylvestre and Marie-Andrée Denis-Boileau University of Ottawa - Civil Law Section and University of Ottawa - Faculty of Law Date Posted: 31 Aug 2018 [7th last week]	68
9.	Sex Offenders, Custody and Habeas Wendy Calaway University of Cincinnati - Blue Ash Date Posted: 28 Aug 2018 [8th lasst week]	59
10.	Patty Hearst Reconsidered: Personal Identity in the Criminal Law Kimberly Kessler Ferzan University of Virginia, School of Law Date Posted: 13 Sep 2018	51

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

• Bucklew v. Precythe: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and (4) whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Compelled Decryption and the Privilege Against Self-Incrimination Orin S. Kerr University of Southern California Gould School of Law Date Posted: 11 Oct 2018	728
2.	The Power of Prosecutors Jeffrey Bellin William & Mary Law School Date Posted: 08 Sep 2018	231
3.	Staying Faithful to the Standards of Proof Kevin M. Clermont Cornell Law School Date Posted: 08 Oct 2018 [4th last week]	133
4.	Artificial Intelligence and Policing: Hints in the Carpenter Decision Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 03 Sep 2018 [5th last week]	120
5.	Gas Chromatography-Mass Spectrometer (GC/MS): In Scientific Evidence, Even 'Gold Standard' Techniques Have Limitations Joanna Gin and Edward J. Imwinkelried University of California, Davis and University of California, Davis - School of Law Date Posted: 14 Sep 2018 [6th last week]	88
6.	Jail as Injunction Russell M. Gold Wake Forest University - School of Law Date Posted: 13 Sep 2018 [10th last week]	83
7.	Policing the Admissibility of Body Camera Evidence Jeffrey Bellin and Shevarma Pemberton William & Mary Law School and Independent Date Posted: 11 Sep 2018	78
8.	Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell Judith Resnik, Anna VanCleave, Kristen Bell, Alexandra Harrington, Gregory Conyers, Catherine McCarthy, Jenny Tumas and Annie Wang Yale University - Law School, Yale University - Law School, Yale University, Law School, Yale Law School, Yale Law School - Student, Yale Law School - Student, Yale Law School - Student and Yale Law School - Student Date Posted: 18 Oct 2018 [new to top ten]	69
9.	The Jim Crow Jury Thomas Frampton Harvard Law School Date Posted: 04 Sep 2018	64
10.	Pendency in the Indian Criminal Process: A Creature of Crisis of Flawed Design? Abhinav Sekhri Delhi High Court Date Posted: 21 Oct 2018 [new to top ten]	49

Blesse & Diegmann on Police Reorganization and Crime

Sebastian Blesse and André Diegmann (geb. Nolte) (Centre for European Economic Research (ZEW) and Centre for European Economic Research (ZEW)) have posted Police Reorganization and Crime: Evidence from Police Station Closures on SSRN. Here is the abstract:

 

Policy makers often try to optimize local law enforcement by reorganizing police forces. We study the effects of police reallocation via station closures on municipal crime by exploiting a quasi-experiment where a centrally administered reform substantially reduced the number of police stations. Combining a matching strategy with an event-study design, we do not find aggregate effects on crime. Instead, we find changes in the way theft is committed. We observe increases in car theft, apartment and basement burglary but less bicycle theft. We argue that station closures provide an opportunity for criminals to shift from low-value to high-value theft.

Morse on Addiction

Stephen Morse (University of Pennsylvania Law School) has posted an abstract of Criminal Law and Addiction (The Routledge Handbook of Philosophy and Science of Addiction 540-53 (Hanna Pickard and Serge H. Ahmed, eds., 2019)) on SSRN. Here is the abstract:

There is a debate among addiction specialists about the degree to which addicts can exert control over seeking and using substances and about other behaviors related to addiction. Some think that seeking and using are solely or almost solely signs of a disease and that addicts have little choice about whether to seek and use. In contrast are those who believe that seeking and using are constrained choices but considerably less constrained on average than the first group suggests. This group is also more cautious about, but does not reject, characterizing addiction as a disorder. There is evidence to support both positions. There is a third group who believe that addiction is simply a consequence of moral weakness of will and that addicts simply need to and can pull themselves up by their bootstraps. The empirical evidence for the moralizing third view seems weak, although such attitudes play a role in explaining the limited role the criminal law accords to addiction. This chapter demonstrates that existing Anglo-American criminal law is most consistent with the choice position. It also argues that this is a defensible approach that is consistent with current science and with traditional justifications of criminal blame and punishment.

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Cover on Supermajoritarian Criminal Justice

Aliza Cover (University of Idaho College of Law) has posted Supermajoritarian Criminal Justice (George Washington Law Review, Forthcoming) on SSRN. Here is the abstact:

 

Democracy is often equated with majority rule. But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian. The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian – historically, unanimous – approval of a jury drawn from the community. And criminal law theorists’ expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian, at best. Both harsh and contested, it has lost the structural mechanisms that could ensure supermajoritarian support. By incorporating new supermajoritarian checks and reinvigorating old ones, we could make criminal punishment consonant with first principles and more responsive to community intuitions of justice.

Duane on Jury Nullification

James J. Duane (Regent University - School of Law) has posted Jury Nullification: The Top Secret Constitutional Right on SSRN. Here is the abstract:

Jury nullification refers to the inherent power of a jury in a criminal trial to refuse to convict a defendant if the jurors are convinced that such a conviction would be fundamentally unjust. According to the Supreme Court of the United States, this power was intentionally given to criminal jurors by the framers of the Constitution, who were determined to ensure that the jury would preserve an inviolable power to act as a guardian against political oppression and unjust prosecutions. Despite those impressive constitutional roots, however, jury nullification has received a great deal of unfavorable press, at least among modern judges. For many years, state and federal courts throughout the nation have been unanimous in rejecting any suggestion that jurors ought to be advised about their power to nullify, and have in fact agreed that the jurors should generally be told that they have no such authority.

This article examines the constitutional roots behind the power of jury nullification.

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Hamer on Propensity Evidence in Child Sex Abuse Cases

David A. Hamer (The University of Sydney Law School) has posted Propensity Evidence Reform after the Royal Commission into Child Sexual Abuse (Criminal Law Journal, Vol. 42, 2018) on SSRN. Here is the abstract:

 

The Royal Commission considers the exclusion of propensity evidence, including prior convictions and the evidence of other alleged victims, to be one of the most significant obstacles to child sex offence (CSO) prosecutions. As the Royal Commission recognises, propensity evidence is more probative and less prejudicial than traditionally understood. It recommends broader admissibility for CSO proceedings. The Royal Commission has done valuable work. However, confining reforms to CSO cases is problematic, and its proposed admissibility test is unduly complex. The Council of Attorneys-General (CAG) is considering other models for reform extending to all criminal prosecutions. The CAG should not adopt a minimalist approach to reform. As well as broadening admissibility, the reforms should address spurious and counterproductive complexities in the law, starting with the unhelpful distinction between tendency and coincidence evidence. The new legislation should provide clear guidance on the admissibility and rational use of propensity evidence.

"BALTIMORE’S ‘EYE IN THE SKY’ PLANE IS BACK WITH A NEW PITCH: SURVEIL THE POLICE"

From The Appeal, via the NACDL news scan:

Throughout 2016, a surveillance plane flew above Baltimore recording large portions of the city in secret—until a Bloomberg Businessweek storyexposed the plane that August and shocked the city’s residents.

The plane was equipped with a dozen cameras, flew 8,500 feet in the air, and recorded Baltimore at about 30 miles at a time, creating a permanent record of every person’s movements that could then be zoomed in, rewound, and fast-forwarded. While the resolution is low—each person is just a speck on a screen—the plane works in concert with other surveillance to assist in investigating crimes, especially homicides, according to its Ohio-based developer, former military technologist Ross McNutt.

Huigens on Custodial Compulsion

Kyron Huigens (Cardozo Law School) has posted Custodial Compulsion (Boston University Law Review, Vol. 98, 2019) on SSRN. Here is the abstract:

In cases that fall under Miranda v Arizona, police interrogators not only give a suspect reasons to confess; they also suggest that the suspect ought to confess. In doing so, interrogators effectively invoke the Wigmorean duty of a citizen to produce any evidence he has in his possession, including his own confession. That is, they invoke the duty against which the Self Incrimination Clause stands, so that the clause is applicable to police interrogations, and is violated where it is not waived. This means that “a Miranda violation” is a violation of the Self Incrimination Clause in the field, just as a Fourth Amendment violation occurs in the field.

I rest this argument on the interrogation manuals relied on by the Miranda Court, modern interrogation manuals, and actual interrogation practice as described by Richard Leo.

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Boo! My scary new manuscript on knowledge and belief as criminal mental states

Nothing is more frightening than a manuscript the first sentence of which includes the word "undertheorized." So if you're looking for a Halloween scare, take a look at the manuscript I just posted on SSRN, Knowledge and Belief as Criminal Law Mental States (forthcoming, Ohio State Journal of Criminal Law). On the less scary side, it isn't very long, and I still have time to make changes, so you have a chance to save others the terror of investing energy in something that is wrong. I offer some descriptive and normative ideas about the prevalence of "knowledge" and "belief" not only in grading provisions, but also as the dividing line between criminal and noncriminal conduct.