CrimProf Blog

Harmon on Police Orders

Rachel Harmon (University of Virginia School of Law) has posted Law and Orders (Law and Orders, 123 Colum. L. Rev. 1 (2023)) on SSRN. Here is the abstract:

 

Coercive policing is conducted mostly by means of commands, and officers usually cannot use force unless they have first issued an order. Yet, despite widespread concern about force and coercion in policing, commands are both underregulated and misunderstood. Officers have no clear legal authority to give many common commands, almost no departmental guidance about how or when to issue them, and almost no legal scrutiny for many commands they give. Scholars rarely study commands, and when they do, they get them wrong. As a result of vague law and inadequate analysis, basic questions about police commands—what role they play, where officers get authority to issue them, and how law regulates them—remain unanswered. Instead, officers interact with the public in a legal gray zone, a recipe for illegitimacy and conflict. This Article offers initial answers to these questions.

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Johnson on White Supremacy from the Bench

Vida Johnson (Georgetown University Law Center) has posted White Supremacy from the Bench (Lewis & Clark Law Review, Vol. 27, No. 39, 2023) on SSRN. Here is the abstract:

 

Judges make important decisions in millions of cases a year across the country. Unlike other institutional players and unlike parties and their attorneys, judges are the only player in our adversarial legal system that are by design ostensibly neutral, impartial, and without bias.

Unfortunately, that legal fiction is not fact. Some judges hold racial biases. A judge in Texas used racial slurs to describe Mexicans in his state in 2020. A white judge in Louisiana in 2020 referred to a court deputy by the N-word, a white Colorado judge also used n-word in a conversation with court staff in 2020. A federal judge in Texas stated publicly that Black and Latinos are more violent than whites. A Jacksonville, FL judge said that Black people should go “back to Africa”. An Ohio judge referred to SARS-COVID-2 as the “China Virus”. In this article, I have documented scores of instances of racial bias by judges since the year 2000.

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Sullivan on Protecting the Dependents of Innocent Caregivers

Michael Sullivan (St. Mary's) has published Born Innocent: Protecting the Dependents of Innocent Caregivers with Oxford University Press. Here is a summary:

Born Innocent advances a normative argument that vicarious punishment is re-emerging in a variety of state actions resulting in the separation of families and confinement of caregivers across contexts.  Children in mixed-citizenship status families often experience the loss of a parent or caregiver through detention and deportation. States deny individuals birthright citizenship based on the actions, behaviors, status, or group identity of their parents. Economically disadvantaged and minority citizens suffer the collateral consequences of mass incarceration when the state detains their parents or caregivers. The children of foreign fighters are suffering the vicarious punitive effects of denationalization and other state actions targeting their parents for their actions in a conflict zone as an anti-terrorism measure by their former country of citizenship. Vicarious punishment never went away in the case of Indigenous children separated from their families to punish their community for resisting assimilation and the extinguishment of their land claims. Their families continue to suffer from intergenerational trauma and child welfare interventions. Immigrants and asylum seekers from colonized countries and Indigenous people share in an understanding of the need for settler colonial states to reconcile with those whom they oppressed for generations.

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Chien et al. on Suspended Licenses

Colleen V. Chien, Alyssa Aguilar, and Varun Gujarathi (Santa Clara University - School of Law, Santa Clara University - School of Law and Santa Clara University - Computer Science and Engineering) have posted The Financial Impact of Suspended Licenses in Illinois on SSRN. Here is the abstract:

 

Illinois is considering a bill, HB277, to end debt-driven suspensions for failure to appear. While the License to Work (2020) and SAFE-T Acts (2021) eliminated driver’s license suspension for fines and fees in Illinois, it is estimated that over 100,000 Illinois drivers have a suspended driver's license due to failure to appear in traffic court.1 These suspensions are often just an extension of the debt collection process for traffic tickets. Currently, the individual must appear in court and “resolve the violation”, a reinstatement fee may be required, and only then will the Secretary of State remove the failure to appear suspension from a driver’s license.2

Cook on Pedophiles, Prosecutors, and Power

Blanche Cook (Loyola University Chicago School of Law) has posted Jeffrey Epstein: Pedophiles, Prosecutors, and Power (Journal of Gender, Race & Justice, 2023) on SSRN. Here is the abstract:

 

Jeffrey Epstein, a wealthy, white, billionaire child rapist, ran an international sex trafficking ring. Rather than prosecute Epstein, Alex Acosta, a former United States Attorney, brokered a deal with Epstein’s defense attorneys coined, “the sweetheart deal of the century.” When Acosta abdicated his role as a state functionary and allowed Epstein’s defense attorneys to dictate the terms of Epstein’s freedom, Acosta gave the power of the State to private parties to protect a recidivist child rapist.

The failure to prosecute Epstein is all the more problematic because it sits at the epicenter of mass incarceration. Through its carceral system, the United States disappears persons of color from existence, the political process, and the capacity to reproduce at rates both unprecedented and staggering. Epstein, however, inhabited a body that dictated the unprecedented process he received. Long before law enforcement discovered scores of Epstein’s child victims, Epstein’s race, class, and gender (his white heteropatriarchal privilege) incentivized the federal government to decline prosecuting him. Epstein’s body prescribed his humanity, while his victims, often poor and female, lacked humanity and received no process. Acosta declined to prosecute Epstein, when the United States incarcerates more people than any other county in the whole of human history when there is a desire to prosecute.

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Mannheimer on Police Violence and the Original Meaning of "Due Process of Law"

Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Police Violence and the Original Meaning of 'Due Process of Law' (Northern Kentucky Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Two different sources of law constrain police violence: state substantive law and the Constitution. State criminal law provides defenses – self-defense, defense of others, and the law enforcement defense – when police use of violence would otherwise constitute assault, murder, or other crimes. The Fourth Amendment constrains police use of violence to seize people. Lawyers, judges, and legislators often conflate the two, believing that, because the Supremacy Clause typically makes federal law supreme over state law, the constitutional standards must be woven into, or even displace, state law.

This is problematic for at least two reasons. First, the Fourth Amendment applies only where a person has been “seized.” Thus, preemption of state law by the Fourth Amendment might result in virtually no protection at all for victims of unjustified police violence in non-seizure situations. Second, state law criminal defenses have for centuries permitted violence only as a last resort, through the requirements of necessity, imminence, and proportionality, which are necessary to a successful justification claim. But the Fourth Amendment standard does not contain these constraints, at least not explicitly. As a result, judges who treat the Fourth Amendment as supplying the relevant standard for justifiable police use of violence have unwittingly abrogated this central idea that violence is justified only if absolutely necessary. This has led some state courts to impliedly reject 700 years of Anglo-American law with the stroke of a pen, a result that can be characterized, without hyperbole, as not just wrong but monstrously wrong.

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University of Wisconsin seeks entry-level criminal law and/or procedure hire

Details can be found here.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Oklahoma v. Castro-Huerta -- Rebalancing Federal-State-Tribal Power Stacy Leeds, Robert J. Miller, Kevin K. Washburn and Derrick Beetso Arizona State University (ASU) - Sandra Day O’Connor College of Law, Arizona State University (ASU) - Sandra Day O'Connor College of Law, University of Iowa College of Law and Arizona State University (ASU) - Sandra Day O'Connor College of Law Date Posted: 26 Apr 2023 [2nd last week]	165
2.	State Debt-Based Driver’s License Suspension Laws Michael Leyendecker and Kate Elengold University of North Carolina at Chapel Hill, School of Law and UNC School of Law Date Posted: 08 Feb 2023 [3rd last week]	145
3.	Why Criminal Defendants Cooperate: The Defense Attorney's Perspective Jessica Roth, Anna D. Vaynman and Steven D. Penrod Yeshiva University - Benjamin N. Cardozo School of Law, John Jay College - CUNY Graduate Center and John Jay College of Criminal Justice Date Posted: 17 Mar 2023 [4th last week]	135
4.	The Criminal Metaverse Eldar Haber University of Haifa - Faculty of Law Date Posted: 10 Apr 2023 [6th last week]	128
5.	Racial Bias, Accomplice Liability, and the Felony Murder Rule: A National Empirical Study G. Ben Cohen, Justin D. Levinson and Koichi Hioki University of Iowa -- College of Law, University of Hawaii at Manoa - William S. Richardson School of Law and Kobe University - Graduate School of Business Administration Date Posted: 19 Apr 2023 [8th last week]	109
6.	Sentencing in an Era of Plea Bargains Jeffrey Bellin and Jenia Iontcheva Turner William & Mary Law School and Southern Methodist University - Dedman School of Law Date Posted: 30 Mar 2023 [9th last week]	101
7.	Ineffective Assistance of Case Law: The Supreme Court's Deficient Habeas Jurisprudence Daniel S. Medwed Northeastern University - School of Law Date Posted: 24 Mar 2023 [10th last week]	81
8.	Rights Violations as Punishment Kate Weisburd George Washington Law School Date Posted: 24 Apr 2023 [new to top ten]	68
9.	Traffickinghub: Reforming Section 230 of the Communications Decency Act to Address Pornhub’s Exploitation of Sex Trafficking Victims Hannah DePoy Hayden University of Louisville, Louis D. Brandeis School of Law, Students Date Posted: 13 Apr 2023 [new to top ten]	63
10.	Political Corruption Michael D. Gilbert and Deborah Hellman University of Virginia School of Law and University of Virginia School of Law Date Posted: 24 Apr 2023 [new to top ten]	54

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Use and Misuse of Section 144 CrPC Vrinda Bhandari, Abhinav Sekhri, Natasha Maheshwari and Madhav Aggarwal Independent, Delhi High Court, Independent and Independent Date Posted: 22 Mar 2023	1,316
2.	The End of Batson? Rulemaking, Race, and Criminal Procedure Reform Thomas Frampton and Brandon Osowski University of Virginia School of Law and University of Virginia (UVA) School of Law, University of Virginia (UVA) School of Law, Students Date Posted: 27 Apr 2023	258
3.	Proving Actionable Racial Disparity Under the California Racial Justice Act Colleen V. Chien, W. David Ball and William A. Sundstrom Santa Clara University - School of Law, Santa Clara School of Law and Santa Clara University - Leavey School of Business - Economics Department Date Posted: 27 Mar 2023	156
4.	Evidence Rules for Decarceration Erin Collins University of Richmond School of Law Date Posted: 28 Apr 2023	142
5.	Overworking Public Defenders Aviv Caspi Stanford University Date Posted: 10 Apr 2023 [8th last week]	108
6.	Five Faces of the Public Defender Scott Howe Chapman University, The Dale E. Fowler School of Law Date Posted: 07 Apr 2023 [5th last week]	105
7.	Lawfulness and Police Use of Facial Recognition in the UK: Article 8 ECHR and Bridges v South Wales Police Nora Ni Loideain Information Law & Policy Centre Date Posted: 21 Apr 2023 [6th last week]	101
8.	Sentencing in an Era of Plea Bargains Jeffrey Bellin and Jenia Iontcheva Turner William & Mary Law School and Southern Methodist University - Dedman School of Law Date Posted: 30 Mar 2023 [7th last week]	100
9.	Role of Forensic Science in Rape and Murder Cases: Measures for Viable Results J Lakshmi Charan Andhra University Date Posted: 17 Feb 2023 [10th last week]	98
10.	A History of Fruit of the Poisonous Tree (1916-1942) Daniel B. Yeager California Western School of Law Date Posted: 15 Mar 2023 [9th last week]	97

Morse et al. on Donating to the District Attorney

Michael Morse, Carissa Byrne Hessick, and Nathan Pinnell (University of Chicago Law School, University of North Carolina School of Law and Prosecutors and Politics Project) have posted Donating to the District Attorney (UC Davis Law Review, Vol. 56, No. 4, 2023) on SSRN. Here is the abstract:

 

The United States is the only country that elects its local prosecutors. In theory, these local elections could facilitate local control of criminal justice policy. But the academic literature assumes that, in practice, prosecutor elections fail to live up to that promise. This Article complicates that conventional wisdom with a new, national study of campaign contributions in prosecutor elections. The study offers a more complete empirical account of prosecutor accountability by analyzing contributions to local candidates as well as their election results. It details the amount of money in local prosecutor elections, including from interest groups, and the relationship between candidate fundraising and success. The stark differences across the country underscore that the more than two thousand local prosecutors are not a monolith; some offices are best understood as political, with contested elections and significant amounts of campaigning, while most appear more bureaucratic, with neither. Recognizing this distinction suggests that accountability efforts require a multifaceted approach. If some prosecutors are more akin to bureaucrats, reformers should not limit themselves to recruiting electoral challengers; they should also consider layering bureaucratic accountability on top of political accountability. Further, at least for now, money in prosecutor politics has served as a moderating, rather than punitive, force.

Thomaidou & Berryessa on Sentencing and Psychology

Mia Thomaidou and Colleen M. Berryessa (Rutgers, The State University of New Jersey - School of Criminal Justice and Rutgers, The State University of New Jersey - School of Criminal Justice) have posted Sentencing (In P. Zapf (Ed.), APA Handbook of Forensic Psychology (2nd Ed.). Washington, DC: American Psychological Association) on SSRN. Here is the abstract:

 

This is a forthcoming chapter on criminal sentencing for the second edition of the APA Handbook of Forensic Psychology. The chapter begins by describing the historical context, standards, goals, and significance of criminal sentencing in the United States (U.S.). In an effort to elucidate the key influences to and practices by which courts reach sentencing decisions, we then describe psychological and cognitive-behavioral theories relevant to sentencing decision-making. After describing these theories and principles guiding our understanding of the cognitive and computational shortcuts involved in decision-making, we review relevant sentencing research and case law. Key legal, extralegal, and extraneous factors that can influence sentencing are also described to provide a more comprehensive view of sentencing decision-making in practice. We then discuss the significance of sociocultural identities and systemic inequalities in sentencing related to past and current practices, as well as concerns regarding the future of sentencing decision-making that may increasingly rely on automation. Finally, policy issues are discussed, with a particular focus on de-biasing humans, machines, and improving overall sentencing decision-making.

Segev on The Structure of Criminal Law

Re'em Segev (Hebrew University of Jerusalem – Faculty of Law) has posted The Structure of Criminal Law (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:

 

According to a common view, criminal law should be structured in a way that allocates the conditions of criminal liability to different types of legal rules, given the content of the condition and the nature of the rule. This view classifies some conditions as elements of offenses and others as (part of) justificatory defenses or of excusatory defenses. While this view is attractive, I argue that it should be rejected, since it is incompatible with two plausible propositions about legal rules. The first is that foundational reasons are not concerned with the structure of the law as such. The second is that legal rules should be constructed in a way that reflects (the balance of) all the applicable reasons and not just some of them.

Opinion on aiding and abetting

Justice Thomas delivered the opinion for a unanimous Court in Twitter, Inc. v. Taamneh. Justice Jackson filed a concurring opinion. Though the case involves civil liability, the Court discusses criminal standards at length.

Bhala on Tribal Punishment of Non-Native Americans

Shera Bhala has posted Dissenting Opinion to Oliphant v Suquamish Indian Tribe (1978) (Columbia Undergraduate Law Review, Volume XIX, no. 1 (Fall 2022): 24-38) on SSRN. Here is the abstract:

Oliphant v Suquamish Indian Tribe (1978) is the most devastating Supreme Court decision for Native American tribes in the modern era (1970s – Present). The holding, which deprives tribes of the inherent power to prosecute non-Native Americans for crimes committed on reservations, continues to threaten tribal communities and erode indigenous sovereignty. In the dissenting opinion, Justice Thurgood Marshall (joined by Chief Justice Warren Burger) wrote, “[i]n the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy, as a necessary aspect of their retained sovereignty, the right to try and punish all persons who commit offenses against tribal law within the reservation.” Justice Marshall rightly noted both the inherent powers of tribes as sovereigns and the essentiality of criminal jurisdiction to tribal self-governance. Motivated by the implications of this decision, and the power of Justice Marshall’s pen, I present a dissenting opinion to Oliphant. This opinion is written as if it were contemporaneous with the Court’s Oliphant decision. The problematic term “Indian” is used only in this article in the context of external quotations or official legal phrases.

DEPC & PPP on Enforcing Marijuana Prohibitions

Drug Enforcement and Policy Center and Prosecutors and Politics Project (Ohio State University (OSU) - Michael E. Moritz College of Law and University of North Carolina School of Law) have posted Enforcing Marijuana Prohibitions: Prosecutorial Policy in Four States on SSRN. Here is the abstract:

 

As more states have legalized and decriminalized marijuana, the enforcement of criminal laws prohibiting the personal possession of marijuana has become more controversial in states where cannabis remains illegal. Yet, very little is understood about how other prosecutors enforce criminal prohibitions on the personal possession of marijuana. This study aims to fill this gap. It systematically examines prosecutorial enforcement of laws prohibiting the personal possession of marijuana in four states that have not legalized medical or adult-use marijuana. The study had four major goals: (1) to determine what enforcement policies had been adopted by incumbent prosecutors, (2) to determine the enforcement platforms of candidates running for the office of local prosecutor, (3) to explore the reasons and reasoning behind those policies and platforms, and (4) to determine what information, if any, was accessible to voters about the issue.

Karteron on Family Separation Conditions

Alexis Karteron (Rutgers, The State University of New Jersey - Rutgers Law School) has posted an abstract of Family Separation Conditions on SSRN. Here is the abstract:

 

America’s mass incarceration crisis does not end at the prison gates. While an estimated two million people are presently incarcerated, nearly twice that number of people are subject to probation, parole, and other forms of community supervision. This Article documents one particularly troubling aspect of this system of “nonincarceration mass incarceration”: the widespread use of supervision conditions that separate people on parole, probation, and supervised release from their families. Courts regularly approve supervision conditions that categorically bar supervisees from contacting or interacting with their family members. Although these conditions are sometimes justified, they are used indiscriminately without individualized analysis of whether supervisees should be separated from their families. The result is a shadow system of family separation that imposes grievous infringements of familial integrity rights, perpetrates serious harms to supervisees and their family members, and undermines successful reentry for incarcerated people returning home.

After empirically documenting the prevalence of family separation conditions, this Article explains the legal doctrines that courts use to justify these conditions and advocates for reform. Courts reason that supervisees have no legal right to be with their family members because there is no such right when a person is incarcerated. But this justification ignores the reality of how the carceral state functions and distorts the legal framework that ordinarily governs deprivations of fundamental constitutional rights. Although heightened constitutional scrutiny should be applied in cases challenging family separation conditions, broader reforms are needed. Family separation conditions, this Article argues, should be subject to rigorous review at the time they are imposed, with decision making taken out of the hands of probation and parole officers and directed to courts, which are better suited to address these complex and sensitive family matters.

Morgan on Disability Frames in Prison Reform Litigation

Jamelia Morgan (Northwestern University - Northwestern Pritzker School of Law) has posted Contesting the Carceral State with Disability Frames: Challenges and Possibilities (University of Pennsylvania Law Review, Vol. 170, 2022) on SSRN. Here is the abstract:

 

Since the passage of the ADA, disability frames are fairly common in prison reform litigation. As I discuss below, though the disability frame serves some productive purposes, not all uses of the disability frame are beneficial given the long-standing goals of disability rights and disability justice movements. Indeed, both in prison reform litigation and beyond, stigmatizing tropes of disability may be present, even amidst legal victories. That is to say, the reliance on stigmatizing tropes of disability may harm broader movement goals even if, in the individual case, the plaintiff prevails. The legal strategy of characterizing disability as an injury deserving of damages produces real tensions for advocates who aim to further the rights of prisoners and detainees without stigmatizing those within that group who are people with disabilities. For prison reform advocates, what is the appropriate use of the disability frame, if any? Which disability frames are stigmatizing? What are some of the challenges of deploying disability frames in conditions of confinement litigation and what are some of the possibilities? More specifically, what disability frames are productive in terms of promoting the separate goals of prison reform, decarceration, or abolition?

Morgan on Abolition and Legal Analysis

Jamelia Morgan (Northwestern University - Northwestern Pritzker School of Law) has posted Responding to Abolition Anxieties: A Roadmap for Legal Analysis (Michigan Law Review, Vol. 120, April 2022) on SSRN. Here is the abstract:

 

This Review uses Mariame Kaba’s book, We Do This Til' We Free Us, as a springboard and template for thinking through what abolitionist methodology might offer to legal analysis. It responds to a fundamental question: How does abolition theory supplement existing ways of thinking about legal problems? To push the question further, how can lawyers and legal academics add abolitionist thinking—and more specifically, the abolitionist critique—to the collection of “tools for thinking
about legal questions”?

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Balakrishnan on Mass Surveillance as Racialized Control

Prithika Balakrishnan (UC Hastings Law School) has posted Mass Surveillance as Racialized Control (forthcoming in 71 UCLA L. R.) on SSRN. Here is the abstract:

 

Incarceration has become the a historicized norm for those who assert their innocence. A staggering number of defendants are incarcerated prior to the adjudication of their cases — a reality that has become a central paradox of an American criminal justice system which holds axiomatic the presumption of innocence. Recent attempts to address pretrial mass incarceration through bail reform and COVID-19 compassionate release have embraced digital surveillance, resulting in unintended and little understood consequences.

This Article examines how the expanded use of pretrial GPS surveillance is radically changing the presumption of innocence by implicating punitive measures absent constitutional protections and amplifying the racial disparities in our criminal justice system. Largely viewed as a substitution for physical detention and therefore a less onerous intrusion on a defendant’s liberty, pretrial GPS surveillance erodes fundamental liberties under the guise of criminal justice regulation. These highly racialized but invisible repercussions include harms to physical and psychological health, freedom of movement, privacy, and future economic self-determination. I argue that in light of these substantial harms, courts must examine how they evaluate technological surveillance, affording defendants substantive and procedural due process protections where there currently are none.

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Lin on Lay Participation and Appellate Review in Taiwan

Mao-hong Lin (Graduate School of Criminology, National Taipei University) has posted Trial and Error: A Comparative Perspective on the Lay Participation in Criminal Trials and Appellate Review of Errors in Taiwan (Indiana International & Comparative Law Review, Vol. 33, No. 1, 2023) on SSRN. Here is the abstract;

 

Taiwan follows its East Asian counterparts to establish a system of lay participation in criminal trials, which is called citizen judges and took effect in January 2023. But Taiwan will soon face similar conundrums, like Japan and South Korea have encountered, about whether to allow professional judges to review and even reverse decisions made by citizen judges. In a mock case, the Taiwan High Court and Taiwan’s Supreme Court both attempted to address the conflict from a perspective of American law, but more controversies have emerged than been solved. This Article follows the route of the two courts and deals with those unsettled controversies in four aspects: legal errors, factual errors, sentencing errors, and the mixed questions of law and fact. This Article advises appellate courts to: (1) employ principles like preservation of claims, plain errors, and harmless errors when reviewing legal errors de novo, (2) incorporate the substantial evidence review with the existing law into a two-step test, through which the appellate review of factual errors may work better, (3) interpret the standard of exceeding unreasonableness in an abuse-of-discretion way when investigating errors in sentencing, and (4) replace the de novo standard with a spectrum approach when reviewing the errors of impropriety, namely the mixed question of law and fact in Taiwan’s context. Through these adjustments in the appellate review process, the new system of citizen judges will better serve to enhance the public knowledge of and confidence in criminal trials as the new system has been entailed.