CrimProf Blog

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	1,253
2.	Amicus Brief of Professor Orin Kerr on Standards for Compelled Decryption Under the Fifth Amendment Orin S. Kerr University of Southern California Gould School of Law Date Posted: 03 Nov 2018	436
3.	Staying Faithful to the Standards of Proof Kevin M. Clermont Cornell Law School Date Posted: 08 Oct 2018 [4th last week]	165
4.	Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions Paul G. Cassell University of Utah - S.J. Quinney College of Law Date Posted: 01 Nov 2018 [3rd last week]	163
5.	The Place of 'the People' in Criminal Procedure Jocelyn Simonson Brooklyn Law School Date Posted: 13 Nov 2018	141
6.	The Biased Algorithm: Evidence of Disparate Impact on Hispanics Melissa Hamilton University of Surrey School of Law Date Posted: 29 Oct 2018	114
7.	Statement of Commissioner Gail Heriot in the U.S. Commission on Civil Rights’ report, Police Use of Force: An Examination of Modern Policing Practices Gail L. Heriot University of San Diego School of Law Date Posted: 16 Nov 2018	114
8.	The Second Chance Gap Colleen V. Chien Santa Clara University - School of Law Date Posted: 04 Nov 2018 [9th last week]	90
9.	Fictional Pleas Thea Johnson University of Maine School of Law Date Posted: 18 Nov 2018 [new to top ten]	89
10.	Managing Digital Discovery in Criminal Cases Jenia Iontcheva Turner Southern Methodist University - Dedman School of Law Date Posted: 30 Oct 2018 [8th last week]	87

Next week's criminal law/procedure argument

Issue summaries are from ScotusBlog, which also links to papers:

Wednesday

• Gamble v. U.S.: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Ram on Privacy After Carpenter

Natalie Ram (University of Baltimore - School of Law) has posted Rebuilding Privacy Practices After Carpenter on SSRN. Here is the abstract:

 

The recent arrest of the alleged Golden State Killer has ignited law enforcement interest in using genetic genealogy databases to crack cold cases. The break in that case came when investigators compared DNA recovered from crime scenes to other DNA profiles searchable in an online genetic genealogy database called GEDmatch. Yet, genealogical genetic services have responded to increased law enforcement interest in markedly different ways. GEDmatch updated its user interface, terms of service, and privacy policy to welcome law enforcement expressly, authorizing law enforcement to use its platform to investigate “violent crimes.” 23andMe and AncestryDNA, by contrast, have emphasized their commitment “to resist law enforcement inquiries to protect customer privacy.” At almost the same time, the Supreme Court gave these platforms a reinvigorated role in policing police access to their genetic resources. In Carpenter v. United States, the Court upended the previously categorical rule that one cannot have an expectation of privacy in data shared with another.

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Diamantis on Collective Knowledge

Mihailis Diamantis (University of Iowa - College of Law) has posted Getting Comfortable With Collective Knowledge (Getting Comfortable with Collective Knowledge, Compliance and Enforcement, [URL removed by SSRN] (Oct. 26, 2018)) on SSRN. Here is the abstract:

 

 The collective knowledge doctrine is the foremost contender for patching the deficiencies of respondent superior when it comes to attributing knowledge states to corporations. It has yet to win many supporters, among courts or scholars. This short paper proposes a new diagnosis of the problem. There is an unacknowledged inconsistency between how courts formulate the collective knowledge doctrine and how they apply it. The former is very limited; the latter is potentially very expansive. I argue that the gap between these two variants conceals what is really worrisome about the doctrine — hidden judicial discretion in how knowledge gets attributed corporations. It is only by drawing attention to this discretion and thinking about how to constrain it that the collective knowledge doctrine will have any chance of persuading detractors.

Sandefur on Arizona's Private Affairs Clause

Timothy Sandefur (Goldwater Institute) has posted The Arizona Private Affairs Clause: Time for a Second Look (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

The Arizona Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” This language is notably different from that used in the federal Constitution’s Fourth Amendment, or to analogous provisions in other state constitutions. The language is found in only one other constitution--that of Washington State, from which it was copied, and where courts have developed a robust and protective Private Affairs jurisprudence.

Yet despite their recognition that the state Constitution can and should protect a broader range of rights than the federal Constitution does, Arizona courts have largely failed to appreciate or give effect to the significance of these differences.

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Time Limits on Pretrial Detention of Children

International Human Rights Law Clinic (IHRLC), University of Minnesota Human Rights Center and Juvenile Justice Advocates International (JJAI) have posted Children in Pretrial Detention: Promoting Stronger International Time Limits (A Collaborative Project with Juvenile Justice Advocates International and the University of Minnesota Law School Human Rights Center) on SSRN. Here is the abstract:

This report urges state actors, civil society, and international bodies to recognize that reducing the duration of pretrial detention for children is an urgent priority. While significant research, documentation, and promising practices exist for monitoring detention conditions and implementing alternatives to detention, there is a gap in research on the duration of child pretrial detention. This report attempts to fill this gap. It summarizes existing literature on the negative impacts of pretrial detention on children, and examines existing international and regional human rights standards and recommendations on the topic. Its perhaps most significant contribution is the documentation of existing international and regional human rights standards or court-imposed time limits for child pretrial detention across 118 countries. The report offers recommendations for international, regional, and national human rights bodies to adopt that will significantly reduce the amount of time children spend deprived of liberty while awaiting adjudication.

Bridgette Baldwin on Bias, Profiling, and Policing

Bridgette Baldwin (Western New England University School of Law) has posted Black, White, and Blue: Bias, Profiling, and Policing in the Age of Black Lives Matter (Western New England Law Review, Vol. 40, p. 431, 2018) on SSRN. Here is the abstract:

 

The United States has experienced a series of murders at the hands of the police in recent years, from Michael Brown to Tamir Rice to Eric Garner. The brutalization of Black people at the hands of the police is not new, but many are being introduced to the concept of police brutality through the channels of social media. Hashtags like #BlackLivesMatter and #TakeAKnee have revolutionized the conversation about racism and policing, bringing these incidents into mainstream media and common conversation. This movement has led to a deeper discussion on the following questions: (1) Why are Black people viewed as violent by the police?; (2) Why are these murders and acts of brutality being seen so regularly?; and (3) What has the criminalization of communities of color done to damage the public's perception of Black communities? This Article attempts to answer all of these questions, coming to the conclusion that while the police brutality of Black people is not new, our understanding of why these incidents occur has developed into a deeper understanding of the institutional racism behind police brutality.

Jochnowitz on Wrongful Convictions

Leona Deborah Jochnowitz (Curry College) has posted Analyzing Wrongful Convictions Beyond the Traditional Canonical List of Errors, for Enduring Structural and Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies) on SSRN. Here is the abstract:

 

What are the explanations and “causes” of wrongful conviction cases beyond the canonical list of errors, including more enduring structural and sociological “causes”? Researchers identify possible structural causes for wrongful convictions: racism, justice system culture, adversary system, plea bargaining, media, juvenile and mentally impaired accused, and wars on drugs and crime. They indicate that unless the root causes of conviction error are identified, the routine explanations of error, (eyewitness identifications; false confessions) will continue to re-occur. Identifying structural problems may help to prevent future wrongful convictions. The research involves the coding of archival data from the Innocence Project for 17 cases including the Central Park five exonerees. The data was coded with Hartwick College and Johnson State College students in the respective wrongful convictions courses.

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Johnson on Fictional Pleas

Thea Johnson (University of Maine School of Law) has posted Fictional Pleas (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky. Indeed, where there is no creative option based on the underlying facts of the allegation, the attorneys must turn to fiction.

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Abramovaite et al. on Alternatives to Custody

Juste Abramovaite, Siddhartha Bandyopadhyay, Samrat Bhattacharya and Nick Cowen (University of Birmingham, University of Birmingham - Department of Economics, Fifth Third Bank - Asset Management Division and New York University School of Law) have posted Alternatives to Custody: Evidence from Police Force Areas in England and Wales (The British Journal of Criminology, Forthcoming) on SSRN. Here is the abstract:

 

England and Wales have some of the highest incarceration rates in the developed world. Recent policy reforms have focused on developing alternatives to custody that offer credible protection for the public, and justice for victims of crime. This paper uses unique detailed panel-level data acquired from the Ministry of Justice for all Police Force Areas from 2002 to 2013 in England and Wales to analyse the effects of custodial and non-custodial sentences on recorded crime. Our results suggest that non-custodial sentences can be an effective alternative to custody at reducing property crime but their effect is less consistent for violent crime. This suggests that non-custodial sentences are credible, cost-effective substitutes to incarceration.

Wilson et al. on Support for Felon Voting Rights

David C. Wilson, TaLisa Carter and Khalilah L Brown-Dean (University of Delaware - Political Science & International Relations, University of Delaware - Sociology and Criminal Justice and Quinnipiac University) have posted Factors Affecting Support for Felon Voting Rights: Personal Beliefs, Felon Attributes, and Political Context on SSRN. Here is the abstract:

 

In this research, we examine a host of factors, including punitive beliefs, informational cues about felons, and familiarity with state voting laws, to determine what criteria individuals use to decide their position on felon voting rights. Using national survey data, we find that punitive beliefs like social dominance orientation, racial resentment, and conservatism reduce support for felon voting rights. We find more support when people perceive that felons have adequately paid their debt to society by completing their sentences (i.e., not in prison) and given adequate retribution (e.g., serving in the military). Finally, we find that individuals support voting rights for felons more when they believe their state law already allows felons to vote. Together these factors suggest a set of criteria tied to deservingness that explains when and why the public supports rights for felon voting.

Berger and Stribopoulos on Bail, Risk, and the Judge

Benjamin L. Berger and James Stribopoulos (York University - Osgoode Hall Law School and Ontario Court of Justice / Osgoode Hall Law School) have posted Risk and the Role of the Judge: Lessons from Bail (in Benjamin L. Berger, Emma Cunliffe, and James Stribopoulos, eds., To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg (Toronto: Thomson Reuters, 2017), 305-326) on SSRN. Here is the abstract:

Judges work in the shadow of risk. A central source of the moral and political burden of the office is to sit in judgment at the troubled confluence of the risk of the unknown, the demands of principle, and the necessity of decision. These burdens of risk are particularly clear in the role of a judge as she acts in the criminal justice system. Working in that particular ecosystem of risk, the burden on the judge has both political and moral dimensions. It is political because decisions distribute rights and liberties. It carries moral weight because the consequence of error is real harm to the lives of individuals and communities.

In this chapter, and in the wake of the Supreme Court’s decision in R v Antic, we examine the relationship between bail, risk, and the role of the judge.

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Sinnar on Domestic and International Terrorism

Shirin Sinnar (Stanford University) has posted Separate and Unequal: The Law of 'Domestic' and 'International' Terrorism (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

U.S. law differentiates between two categories of terrorism. “International terrorism” covers threats with a putative international nexus, even when they stem from U.S. citizens or residents acting within the United States. “Domestic terrorism” applies to political violence thought to be purely domestic in its origin and intended impact. The law permits broader surveillance, wider criminal charges, and more punitive treatment for crimes considered international terrorism. Law enforcement agencies frequently consider U.S. Muslims “international” threats even when they have scant foreign ties. As a result, they police and punish them more intensely than white nationalists and other “domestic” threats. This legal divide not only harms individuals and communities, but also reinforces distorted public perceptions of terrorism that fuel anti-immigrant and discriminatory policies.

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Heriot on Police Use of Force

Gail L. Heriot (University of San Diego School of Law) has posted Statement of Commissioner Gail Heriot in the U.S. Commission on Civil Rights’ report, Police Use of Force: An Examination of Modern Policing Practices on SSRN. Here is the abstract:

On November 15, 2018, the U.S. Commission on Civil Rights published a report, entitled Police Use of Force: An Examination of Modern Policing Practices. This individual Statement of Commissioner Gail Heriot is a part of that report.

In it, Commissioner Heriot points out that, during the Jim Crow Era, the most common complaint among African Americans about law enforcement was that the authorities did not take crime against African Americans seriously. Although that kind of neglect receives little attention in the media today, it continues to be a significant problem.

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Furton on Marijuana Legalization and Crime

Glenn Furton (Department of Agricultural and Applied Economics) has posted High Crimes? The Effect of Marijuana Legalization on Crime in Colorado on SSRN. Here is the abstract:

 

The previous decade has witnessed a surprising number of states move to legalize cannabis for both medical and recreational use. This movement has caused controversy regarding the uncertainty of the effect of legalization on criminal activity. While few empirical studies have shed light on recent legalization and crime, economic theory suggests that a reduction in prohibitions ought not to cause an increase in criminal activity. This study examines the effect of the legalization of recreational marijuana in Colorado on crime rates among all individuals as well as those 21 years of age and under using a synthetic control method to construct a counterfactual state of Colorado. The results indicate that crime increases in all categories in Colorado, with an especially significant increase in property crime committed by adults.

Holsinger et al. on Predicting Crime

Alexander Holsinger, Christopher Lowenkamp, Edward Latessa, Ralph Serin, Thomas H. Cohen, Charles Robinson, Anthony Flores and Scott Vanbenschoten (University of Missouri at Kansas City, AO US Courts Probation and Pretrial Services Office, University of Cincinnati - College of Education, Criminal Justice, and Human Services, Carleton University, Government of the United States of America - Administrative Office of the U.S. Courts, AO US Courts, California State University and AO US Courts) have posted A Rejoinder to Dressel and Farid: New Study Finds Computer Algorithm is More Accurate than Humans at Predicting Arrest and as Good as a Group of 20 Lay Experts (Federal Probation, 82(2): 51-56) on SSRN. Here is the abstract:

 

IN A RECENT article published in Science Advances, Dressel & Farid (2018) presented results from their recent study that they believe call into question the accuracy and fairness of the COMPAS risk assessment tool specifically and all statistically-based prediction tools more generally. In reaching these two conclusions, Dressel and Farid made the arguments that laypeople are as accurate (or better) and as fair in their prediction of reoffending as statistically based risk assessment instruments empirically designed to predict reoffending. In the following pages, we closely examine the authors’ premise, methodology, and conclusions, focusing on some omissions and incorrect assumptions. In addition, while Dressel and Farid focus on the binary decision of “future crime” (yes vs. no), we also argue that risk assessment has important justice related objectives beyond merely predicting new criminal conduct. We also think it is worth noting that none of us has any ties to COMPAS or its parent company Northpointe. This rebuttal is not meant as an endorsement of COMPAS.

Rosenbloom on Crimmigration and Severity

Rachel E. Rosenbloom (Northeastern University - School of Law) has posted Beyond Severity: A New View Of Crimmigration (Lewis & Clark Law Review, Vol. 22, No. 3, 2018) on SSRN. Here is the abstract:

 

While the Trump Administration’s harsh crackdown on immigrants builds on an enforcement infrastructure inherited from previous administrations, this Article cautions against characterizing it as merely an escalation of “crimmigration”—the merging of criminal and immigration law evident in recent decades. I argue instead that key contrasts between current policies and the previous era provide an opportunity to understand the crimmigration era in a whole new way. Crimmigration scholars have thoroughly explored the increasingly harsh nature of immigration enforcement as it has developed over the past few decades. However, crimmigration scholarship, framed exclusively as a critique of severity, has neglected to account for significant aspects of the (pre-Trump) crimmigration era that fell outside the severity paradigm. In particular, crimmigration scholars have largely overlooked the advent of new visas and forms of discretionary relief that Congress created between 1990 and 2000 for noncitizens who are victims of domestic violence, trafficking, and other crimes. While both increased enforcement and crime-based relief have been the subject of significant analysis, this Article is the first to bridge the two subjects, proposing a new way to understand the relationship between these two key aspects of immigration law as it has developed since the 1980s: the “bad news” narrative of ramped-up enforcement and the “good news” narrative of expanded relief. Utilizing frameworks drawn from both feminist theory and criminology, this Article argues that the expansion of relief was never the counterweight to crimmigration’s harsh enforcement policies that it may have seemed but rather an integral component of crimmigration itself, and that crimmigration is best understood not simply as a transition to severity but as a complex phenomenon that produced new categories of favored immigrants at the same time that it expanded the categories of immigrants subject to detention, deportation, and other sanctions. This insight necessitates a new understanding not only of crimmigration but of the advocacy strategies that have taken place in its shadow.

Berger on Humility and McLachlin’s Criminal Justice Jurisprudence

Benjamin L. Berger (York University - Osgoode Hall Law School) has posted What Humility Isn’t: Responsibility and the Judicial Role (in Daniel Jutras and Marcus Moore, eds., The Chief: Essays in Honor of Chief Justice Beverley McLachlin (Forthcoming)) on SSRN. Here is the abstract:

 

In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice jurisprudence that reflect elements of this understanding of the virtue of judicial humility, including careful attention to one’s responsibilities in relationship to vulnerability, history, and the role of others. Not an exercise in hagiography, the chapter also identifies one aspect of the McLachlin Court’s criminal justice jurisprudence — police powers — that fails to express this virtue, so understood. Ultimately, however, the piece argues that Chief Justice McLachlin’s work in the field of criminal law offers an invaluable ethical resource for thinking more deeply about the shape and demands of humility as an adjudicative virtue.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Drug-Induced Homicide Defense Toolkit Valena Elizabeth Beety, Alex Kreit, Jeremiah Goulka and Leo Beletsky West Virginia University - College of Law, Ohio State University - Michael E. Moritz College of Law, Drug Enforcement and Policy Center, Health in Justice Action Lab and Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences Date Posted: 11 Nov 2018 [new to top ten]	275
2.	Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions Paul G. Cassell University of Utah - S.J. Quinney College of Law Date Posted: 01 Nov 2018 [1st last week]	160
3.	Incapacitating Criminal Corporations William Robert Thomas Harvard Law School Date Posted: 24 Sep 2018 [2nd last week]	119
4.	Poor Wesley Hohfeld Peter K. Westen University of Michigan Law School Date Posted: 13 Oct 2018 [3rd last week]	116
5.	Execution by Nitrogen Hypoxia: The Search for Scientific Consensus Kevin Morrow Independent Date Posted: 29 Sep 2018 [4th last week]	105
6.	Nondelegation and Criminal Law Brenner Fissell Hofstra University - Maurice A. Deane School of Law Date Posted: 24 Oct 2018 [5th last week]	76
7.	The Time Frame Challenge to Retributivism Adam J. Kolber Brooklyn Law School Date Posted: 12 Nov 2018 [new to top ten]	55
8.	Crime, Punishment, and Legal Error: A Review of the Experimental Literature Kathryn Zeiler and Erica Puccetti Boston University - School of Law and Boston University, School of Law, Students Date Posted: 10 Oct 2018 [6th last week]	40
9.	Response Retributivism: Defending the Duty to Punish Leora Dahan Katz Polonsky Academy, Van Leer Jerusalem Institute Date Posted: 02 Nov 2018 [7th last week]	40
10.	Who Locked Us Up? Examining the Social Meaning of Black Punitiveness Darren Lenard Hutchinson University of Florida - Levin College of Law Date Posted: 25 Oct 2018 [9th last week]	35

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers:

Monday

• Nieves v. Bartlett: Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.

Wednesday

• Timbs v. Indiana: Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.