CrimProf Blog

Jurenka on Hair Analysis

Alexander Jurenka (University of Davis School of Law) has posted A Forensic Breakthrough: Proteomic Analysis of Human Hair for Individuation Evidence (57 Crim. L. Bull. (2021, Forthcoming)) on SSRN. Here is the abstract:

 

Following a number of reports casting serious doubt on the validity of commonly used methods, the forensic sciences are in a state of crisis. Optical hair analysis for individuation has been shown to be particularly susceptible to erroneous findings. This error comes both in the form of incorrect identifications as well as examiners overstating the weight of optical hair analysis evidence. Absent DNA, there is currently no method available to forensic scientists to provide individuation evidence using a hair sample. Hair protein individuation (“HPI”) aims to fill in this crucial gap in the forensic sciences. HPI utilizes well-established scientific techniques including tandem mass spectrometry, which is already used heavily by forensic scientists for drug identification, to offer an objective, instrument-based analysis of the human hair proteome for individuation evidence. To date there is no legal scholarship concerning HPI, this article provides the first legal analysis of the admissibility of HPI. First, the article details the process of HPI, including literature review, and analyzes the technique for admissibility as evidence of individuation under the Federal Rules of Evidence and the Daubert standard. The article finds that HPI is built on a strong foundation of well-established scientific principles and therefor likely passes the requirement of foundational validity. Next, an examination of validity as applied finds that HPI is likely admissible under certain circumstances relating to the extent of the research conducted to date. Specifically, HPI in its current state may be admissible evidence if the examiner has cranial hair of European origin in sufficient quantity to perform the technique in duplicate. The article concludes with recommendations for future research and collaborations to expand the admissibility of HPI. HPI is a rapidly growing field of study and its admissibility is likely to expand with further research. Forensic hair analysis is undergoing a paradigm shift and HPI stands ready to replace outdated methods, judges and forensic scientists alike should stay informed of its progression.

Larkin on Private Delegation and Private Prisons

Paul J. Larkin, Jr. (The Heritage Foundation) has posted The Private Delegation Doctrine (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Since its earliest days, Congress has delegated lawmaking authority to Executive Branch officials. Over time, a body of Supreme Court case law, known as the Delegation Doctrine, has grown up (ostensibly) to regulate Congress’s ability to offload legislative authority to administrative agencies. Occasionally, however, Congress, like state legislatures and municipal councils, bypasses executive officials and directly delegates lawmaking authority to private parties. The Supreme Court has addressed those delegations in only few cases and struck down three of them, the last one in its 1936 decision in Carter v. Carter Coal Co., 298 U.S. 238. In those cases, the Court did not rely on the Article I Vesting Clause or separation of powers principles, as it has in the case of delegations to administrative agencies. Instead, the Court held the delegations unconstitutional by invoking the Due Process Clauses of the Fifth and Fourteenth Amendments. Nonetheless, the Court did not explain why the Due Process Clauses play that role, and the Court has not offered a rationale since 1936. Perhaps the reason for that omission is that the Court’s contemporary “procedure vs. substance” dichotomy has obscured the original meaning of the Due Process Clause: namely, a guarantee that the government comply with “the law of the land” before trespassing on someone’s life, liberty, or property. That guarantee, which reaches back to Article 39 of Magna Carta, means that the government cannot legislate around the Constitution by empowering a private party to act in a lawless fashion. Put differently, Congress cannot escape constitutional restraints by delegating government authority to private parties to accomplish indirectly what Congress cannot do directly. So viewed, the Private Delegation Doctrine continues to have vitality today in areas such as the constitutionality of private prisons.

McLane on Whren and Batson

Lauren McLane (University of Wyoming College of Law) has posted Our Lower Courts Must Get in ‘Good Trouble, Necessary Trouble,’ and Desert Two Pillars of Racial Injustice — Whren v. United States and Batson v. Kentucky (Connecticut Public Interest Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

This summer, following the senseless murder of George Floyd, America, once again, began to march and protest for Black Lives. All around the country and world, sports teams and leagues, businesses, universities, and other organizations issued statements or, better, started campaigns or reform efforts to address police violence against Black Lives. In taking a step beyond the four corners of the courthouse, multiple lower courts broke their silence and condemned the treatment of African Americans in our criminal justice system. One chief justice went so far as to state that “... black people are ostracized, cast out, and dehumanized.” While these statements, which, in the words of the Wall Street Journal, are a “break with tradition” and should be applauded, the lower courts must do more than make bold remarks. Our lower courts (and the Supreme Court) must reckon with their own reinforcement of systemic racism and act to dismantle oppressive precedents.

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Beety on Pretrial Dismissal, COVID-19, and Protest Arrests

Valena Elizabeth Beety (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted Pretrial Dismissal in the Interest of Justice: A Response to COVID-19 and Protest Arrests (University of Chicago Law Review Online (Nov. 16, 2020)) on SSRN. Here is the abstract:

 

The coronavirus pandemic, which, when paired with unsanitary and overcrowded incarceration conditions, can transform a few months’ sentence into a lifelong health condition or death, compounds the inherent dangers of incarceration in America. Since March 2020, defense attorneys have argued for the release of their clients pending trial, persuasively contending that their clients should not be exposed to a potentially lethal contagious disease for a mere allegation of violating a law. This Essay proposes that courts use their authority to dismiss such cases in the interest of justice and provide a counter to prosecutorial discretion, which has failed to lead us out of over-incarceration in the midst of a pandemic.

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Asongu & Usman on COVID-19 and Sex Trafficking

Simplice Asongu and Usman Usman (African Governance and Development Institute and University of Malaya (UM) - Department of Development Studies) have posted The COVID-19 Pandemic: Theoretical and Practical Perspectives on Children, Women and Sex Trafficking (Forthcoming: Health Care for Women International) on SSRN. Here is the abstract:

 

We provide theoretical and practical perspectives on children, women, and sex trafficking during the COVID-19 pandemic. Process tracing is employed as a primary research instrument. It is an analytical technique used for either theory-building or theory-testing purposes that is employed to elucidate causation and change as well as to develop and evaluate extant theories in social sciences. We illustrate that a policy is needed that will strengthen the capacity of existing structures in the fight against the underlying trafficking so that these attendant structures are efficiently used to stop the trafficking and avoid the corresponding threats to public health safety.

Chin on Pre-Recorded Experts Evidence in Intimate Partner Violence Cases

Jason Chin (Sydney Law School) has posted Pre-Recorded Expert Evidence in Intimate Partner Violence Cases (Current Issues in Criminal Justice, Forthcoming) on SSRN. Here is the abstract:

 

This article makes a case for pre-recorded, modularized expert evidence as a way to improve access to justice in some intimate partner violence (IPV) cases. Knowledge about the effects and dynamics of IPV regularly plays an important role in criminal trials. This knowledge is often beyond the ken of the fact-finder, and thus can provide important context for the case facts. It may also assist in disabusing misconceptions surrounding IPV. Despite the potential value of this knowledge, several rules of evidence and the general nature of the Anglo-American trial process make it difficult to tender such evidence. For instance, trials prefer live testimony of expert witnesses over other means of conveying exogenous knowledge. These limitations place impecunious parties in regional areas at a disadvantage because they may struggle to find qualified experts. As a result, cross-examined pre-recorded modules about IPV (e.g., factors that prevent individuals from leaving abusive relationships, IPV as coercive control) may be helpful in some cases.

Hoffman et al. on Harsh Sentences and Judicial Age and Gender

Morris B. Hoffman, Francis X. Shen, Vijeth Iyengar and Frank Krueger (Second Judicial District Court Judge, State of Colorado, University of Minnesota Law School, U.S. Department of Health and Human Services and George Mason University - Department of Psychology) have posted The Intersectionality of Age and Gender on the Bench: Are Younger Female Judges Harsher with Serious Crimes? (40.1 COLUM. J. GENDER & L. 128 (2020)) on SSRN. Here is the abstract:

 

We analyzed sentencing data from sixteen years of criminal trials in the State of Colorado, consisting of almost 3,000 individual sentences, and discovered an interaction effect of harm, gender, and age not reported in any of the empirical or experimental literature. Young female judges punished high harm crimes substantially more than their male and older female colleagues. These results, if confirmed, could have significant strategic and tactical implications for practicing lawyers. They may also inform policies surrounding judicial selection, education, training, and retirement.

Beety & Oliva on Vulnerable Populations and COVID-19

Valena Elizabeth Beety and Jennifer D. Oliva (Arizona State University (ASU) - Sandra Day O'Connor College of Law and Seton Hall University School of Law) have posted Vulnerable Populations in the Context of COVID-19: Foreword to the Arizona State Law Journal Online Symposium (2 Arizona State Law Journal Online 69 (2020)) on SSRN. Here is the abstract:

 

The widespread global transmission of SARS-CoV-2, the novel coronavirus that causes the disease COVID-19, has altered, injured, and ended the lives of numerous individuals across various communities and nations. It has been well-documented that certain long-neglected populations are particularly susceptible to COVID-19 severe illness and death and, as a result, have been disparately victimized by the pandemic. This Arizona State Law Journal Online Symposium, Vulnerable Populations in the Context of COVID-19, is a compilation of the work of diverse scholarly voices that aims to raise awareness about—and propose reforms to remedy—the legal and policy challenges that have—and continue to—perpetuate adverse health harms on the most vulnerable in our communities. . . .

 

The criminal justice essays challenge the loss of rehabilitative programming for juveniles in custody, examine pandemic detention and access to care through a disability law framework, provide a series of arguments against solitary confinement, and propose community treatment for competency restoration.

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Beety on Changed Science Writs

Valena Elizabeth Beety (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted Changed Science Writs and State Habeas Relief (Houston Law Review, Vol. 57, No. 483, 2020) on SSRN. Here is the abstract:

 

For decades now, the 1996 federal Anti-terrorism and Effective Death Penalty Act (AEDPA) has limited the scope and influence of federal courts in post-conviction case review, forcing convicted individuals to rely instead on state habeas proceedings for conviction relief. Due in large part to the 2009 National Academy of Sciences Report, petitions for conviction relief increasingly include challenges to the government’s scientific evidence at trial. These petitions analyze said evidence by comparing the trial evidence to the advancement of scientific knowledge in the years since the trial. State habeas petitions thus provide an avenue for relief from misused and misrepresented scientific evidence.

State courts, however, can only reexamine faulty scientific evidence, and reverse unconstitutional convictions, if the legislature provides the tools to do so. One such tool is the ability to review post-conviction relief petitions based specifically on faulty science, a tool known as changed science writs.

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Tokson on Inescapable Surveillance

Matthew Tokson (University of Utah - S.J. Quinney College of Law) has posted Inescapable Surveillance (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Until recently, Supreme Court precedent dictated that a person waives their Fourth Amendment rights in information they disclose to another party. The Court reshaped this doctrine in Carpenter v. United States, establishing that the Fourth Amendment protects cell phone location data even though it is revealed to others. The Court emphasized that consumers had little choice but to disclose their data, because cell phone use is virtually inescapable in modern society.

In the wake of Carpenter, many scholars and lower courts have endorsed inescapability as an important factor for determining Fourth Amendment rights. Under this approach, surveillance that people cannot feasibly escape receives more Fourth Amendment scrutiny, while surveillance that can be avoided receives less, or none.

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Schweikert on Qualified Immunity

Jay R. Schweikert (Cato Institute) has posted Qualified Immunity: A Legal, Practical, and Moral Failure (Cato Institute, Policy Analysis No. 901, 2020) on SSRN. Here is the abstract:

 

Accountability is an absolute necessity for meaningful criminal justice reform, and any attempt to provide greater accountability must confront the doctrine of qualified immunity. This judicial doctrine, invented by the Supreme Court in the 1960s, protects state and local officials from liability, even when they act unlawfully, so long as their actions do not violate “clearly established law.” In practice, this legal standard is a huge hurdle for civil rights plaintiffs because it generally requires them to identify not just a clear legal rule but a prior case with functionally identical facts.

Qualified immunity is one of the most obviously unjustified legal doctrines in our nation’s history.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Wage Theft Criminalization Benjamin Levin University of Colorado Law School Date Posted: 21 Sep 2020 [2nd last week]	120
2.	Masking Up: A COVID-19 Face-off between Anti-Mask Laws and Mandatory Mask Orders for Black Americans Caroline Lawrence Yale Law School Date Posted: 21 Sep 2020 [4th last week]	109
3.	Checks and Balances in the Criminal Law Daniel Epps Washington University in St. Louis - School of Law Date Posted: 09 Oct 2020	105
4.	The Unified Theory of Punishment Thom Brooks Durham University Date Posted: 22 Sep 2020 [5th last week]	95
5.	Sex Crimes: First Edition Corey Rayburn Yung University of Kansas School of Law Date Posted: 04 Nov 2020 [new to top ten]	77
6.	Law and Neuroscience Owen D. Jones, Jeffrey D. Schall and Francis X. Shen Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology and University of Minnesota Law School Date Posted: 08 Oct 2020 [10th last week]	76
7.	Inheritance Crimes David Horton and Reid K. Weisbord University of California, Davis - School of Law and Rutgers Law School Date Posted: 11 Sep 2020	75
8.	What Do We Owe Each Other?: An Essay on Law and Society Stephen Morse University of Pennsylvania Law School Date Posted: 30 Oct 2020 [new to top ten]	57
9.	#MeToo and Mass Incarceration Aya Gruber University of Colorado Law School Date Posted: 02 Oct 2020 [8th last week]	56
10.	Potus and Pot: Why the President May Not (and Should Not) Legalize Marijuana Through Executive Action Robert A. Mikos Vanderbilt University - Law School Date Posted: 30 Sep 2020 [new to top ten]	45

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Due Process in a Fee-Driven State Penny White and Glenn Harlan Reynolds University of Tennessee College of Law and University of Tennessee College of Law Date Posted: 17 Sep 2020 [	1,446
2.	New Environmental Crimes Project Data Shows That Pollution Prosecutions Plummeted During the First Two Years of the Trump Administration David M. Uhlmann University of Michigan Law School Date Posted: 14 Oct 2020	199
3.	Remote Criminal Justice Jenia Iontcheva Turner Southern Methodist University - Dedman School of Law Date Posted: 08 Oct 2020	197
4.	Policing Procedural Error in the Lower Criminal Courts Justin Murray New York Law School Date Posted: 11 Sep 2020	180
5.	Prosecutors and Mass Incarceration Shima Baradaran Baughman and Megan S. Wright University of Utah - S.J. Quinney College of Law and The Pennsylvania State University (University Park) – Penn State Law Date Posted: 11 Sep 2020	152
6.	Traffic Without the Police Jordan Blair Woods University of Arkansas - School of Law Date Posted: 19 Oct 2020	133
7.	The Law and Science of Eyewitness Evidence Thomas Albright and Brandon L. Garrett Salk Institute for Biological Studies and Duke University School of Law Date Posted: 01 Oct 2020	120
8.	Survelling the Digital Abortion Diary: A Preview of How Anti-Abortion Prosecutors Will Weaponize Commonly-Used Digital Devices As Criminal Evidence Against Pregnant People and Abortion Providers in a Post-Roe America Cynthia Conti-Cook Independent Date Posted: 16 Sep 2020	92
9.	Money and Punishment, Circa 2020 Anna VanCleave, Brian Highsmith, Judith Resnik, Jeffrey Selbin, Lisa Foster, Hannah Duncan, Stephanie Garlock and Molly Petchenik Yale University - Law School, Arthur Liman Center for Public Interest Law, Yale University - Law School, University of California, Berkeley - School of Law, Fines & Fees Justice Center, Yale University - Law School, Yale University, Law School and Yale University, Law School Date Posted: 12 Oct 2020	90
10.	Forecasting Crime? Algorithmic Prediction and the Doctrine of Police Entrapment Mathew Zaia University of Ottawa - Faculty of Law Date Posted: 28 Oct 2020	89

Lonsky on The Russian Mafia

Jakub Lonsky (University of Liverpool - Management School (ULMS)) has posted Gulags, Crime, and Elite Violence: Origins and Consequences of the Russian Mafia (BOFIT Discussion Paper No. 24/2020) on SSRN. Here is the abstract:

 

This paper studies the origins and consequences of the Russian mafia (vory-v-zakone). I web scraped a unique dataset that contains detailed biographies of more than 5,000 mafia leaders operating in 15 countries of the (former) Soviet Union at some point between 1916 and 2017. Using this data, I first show that the Russian mafia originated in the Gulag – the Soviet system of forced labor camps which housed around 18 million prisoners in the 1920s1950s period. Second, I document that the distance to the nearest camp is a strong negative predictor of mafia presence in Russia’s communities in the early post-Soviet period. Finally, using an instrumental variable approach which exploits the spatial distribution of the gulags, I examine the effects of mafia presence on local crime and elite violence in mid-1990s Russia. In particular, I show that the communities with mafia presence experienced a dramatic rise in crime driven by turf wars which erupted among rival clans around 1993 and persisted for much of the 1990s. Further heterogeneity analysis reveals that mafia presence led to a spike in attacks against businessmen, fellow criminals, as well as law enforcement officers and judges, while politically-motivated violence remained unaffected.

Jochelson et al. on Sex Work

Richard Jochelson, Leon Laidlaw and Michelle Bertrand (Robson Hall, University of Manitoba Faculty of Law, affiliation not provided to SSRN and University of Winnipeg) have posted Prairie Vice: Reflecting on Robson’s Report of the Royal Commission on Charges Re Vice and of Graft Against the Police - A Winnipeg Study (Manitoba Law Journal, Vol. 42, No. 2, 2019) on SSRN. Here is the abstract:

 

Using the foundational tenets undergirding Commissioner Robson’s Report of the Royal Commission on Charges Re Vice and of Graft Against the Police from 1911, we review the critiques from academics and activist groups in response to the Harper government-era legislation that endures to this day, espousing a new model for the criminalization of sex work. We contrast our findings with the conceptions of sex work contained in the Report using a Winnipeg-based sample. We share the results of our survey and reveal that our participants demonstrated multivalent and complex reactions to the legislative provisions of the scheme. Our findings show that participants held complex and divergent views regarding the individual provisions under the legislation and the attendant policy rationales. We also found a gendered variation in responses, with men generally being more supportive of the legalization of sex work than women. Importantly, many of the concepts and foundations that motivated Robson’s findings in his Report can still be seen as threads which run through the activist communities and in the responses to our survey.

Weill on Transnational Jihadism and French Criminal Judges

Sharon Weill (Sciences Po) has posted an abstract of Transnational Jihadism and the Role of Criminal Judges: An Ethnography of French Courts (Journal of Law and Society, Vol. 47, pp. S30-S53, 2020) on SSRN. Here is the abstract:

 

Lower national courts are increasingly asked to perform a transnational role, being directly involved in major geopolitical issues such as conflicts, migration, and transnational terrorism. Based on an ethnography of French criminal courts, this article aims to examine this emerging role of national lower courts as transnationalized players. Through an examination of terrorism prosecutions in France and the positions of the different judicial actors, it is argued that lower criminal courts, acting within a transnational context, can offer more robust resistance to states’ policies than supreme courts. This is because of the routine and the banality of their function and the direct interaction with the accused persons coupled with the judges’ own professional ethos and notion of judicial independence. Unlike supreme courts, whose role is more visible, and thus under the constant scrutiny of the political branches of the state, lower courts can operate in a more distant, independent space.

Slater on Police Shootings

Allen Slater has posted It Should Never Be Justified: A Critical Examination of the Binary Paradigm Used to Categorize Police Shootings (Berkeley Journal of African-American Law & Policy, Volume 21 (2020)) on SSRN. Here is the abstract:

In the aftermath of American police shootings, in press conferences, media coverage, or sometimes in official reports, many prosecutors discuss and classify those shootings as either “justified,” “not justified,” or sometimes “not criminally prosecutable.” Prosecutors might also give a press conference condemning the officer’s actions, while simultaneously stating that no crime can be charged, resulting in a speech that often sounds like “I hear you, I’m upset too, but what am I supposed to do?!”. This binary paradigm — justified or not — creates space for unjust acts by rogue or unfit police officers to slip through the cracks, disappearing with the next news cycle. The paradigm is dehumanizing to the victims of police violence and the police themselves. Additionally, this paradigm undermines the legitimacy of policing, eroding crucial community trust in the institution, making our communities less safe.

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Sharma et al. on Male Literacy and Crimes Against Women

Abhigya Sharma, Akshat Kela, Shivali Anchan and Prachi Rojh (O.P. Jindal Global University - Jindal School of Government and Public Policy, O.P. Jindal Global University - Jindal School of Government and Public Policy, O.P. Jindal Global University and O.P. Jindal Global University - Jindal School of Government and Public Policy) have posted Male Literacy Rates & Crime Against Women: Regression Analysis on SSRN. Here is the abstract:

 

This research aims to analyse whether the rising male literacy rates have an inverse relation with the offences committed by them against women in selected states of our country.

In India, gender-based violence begins before females are born, given the widely practiced female foeticide reflecting how deeply rooted this problem is. Thus, we intend on finding out whether an improvement or change in education levels, translates into a reduction of the atrocities faced by women. Also, to decipher whether education is the core issue, or other associated factors majorly responsible.

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Custers et al. on Money Laundering and Ransomware

Bart Custers, JanJaap Oerlemans and Ronald Pool (Leiden University - Center for Law and Digital Technologies, Leiden University - Centre for Law and Digital Technologies and Government of the Netherlands - The Research and Documentation Centre (WODC)) have posted Laundering the Profits of Ransomware: Money Laundering Methods for Vouchers and Cryptocurrencies (European Journal of Crime, Criminal Law and Criminal Justice, 28 (2020), p. 121-152) on SSRN. Here is the abstract:

 

Ransomware is malicious software (malware) that blocks access to someone’s computer system or files on the system and subsequently demands a ransom to be paid for unlocking the computer or files. Ransomware is considered one of the main threats in cybercrime today. Cryptoware is a specific type of ransomware, which encrypts files on computer systems. The ransom is often demanded in bitcoins. Based on desk research, a series of interviews, and the investigation of several police files, this paper investigates the modi operandi in which cybercriminals use ransomware and cryptoware to make profits and how they launder these profits. Two models, based on the payment of the ransom via vouchers and via bitcoins respectively, are identified and described. These methods allow criminals to launder profits in relative anonymity and prevent the seizure of the illegally obtained money.

Coenen on Hybrid Rights

Dan T. Coenen (University of Georgia Law School) has posted Reconceptualizing Hybrid Rights (Boston College Law Review, Vol. 61, 2020) on SSRN. Here is the abstract:

 

In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. Controversy surrounds hybrid rights in part because there exists no judicial account of their justifiability. To be sure, some scholarly treatments suggest that these rights emanate from the “structures” or “penumbras” of the Constitution. But critics respond that hybrid rights lack legitimacy for that very reason because structural and penumbral interpretive approaches are intrinsically unprincipled and overreaching. As it turns out, however, both proponents and opponents of hybrid rights have taken a wrong turn in their efforts to identify and assess the source of these constitutional safeguards. In fact, hybrid rights are just like other rights in the key sense that each such right emanates from a single constitutional clause. The relevant clause, however, is marked by ambiguity, and courts must deal with that ambiguity as they apply the clause to specific cases. As courts do so, they put to work rules of interpretation, and one of those rules dictates that judges should consider the whole document in deciphering the meaning of any indeterminate text that the document includes.

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