CrimProf Blog

Koh on Prosecution and Polarization

Steven Arrigg Koh (Boston University School of Law) has posted Prosecution and Polarization (Fordham Urban Law Journal, Vol. 50, No. 5, pp. 1117-1137, 2023) on SSRN. Here is the abstract:

 

Domestically and internationally, two prominent contemporary discourses arise in law and society. First, we live in a time of tremendous uncertainty about the nature and function of criminal justice. In the United States, we chronicle mass incarceration, while the international community weighs war crimes prosecutions in Ukraine. Second, we live in a time of polarization, both at home and abroad. Cultural and political division is elevated domestically, while the international community debates fragmentation in a multipolar world.

This symposium contribution to the Fordham Urban Law Journal’s “Future of Prosecution” symposium asks: what does it mean to prosecute in a time of polarization? This contribution describes a prosecution- polarization dynamic, wherein criminal cases may foster polarization domestically and internationally. In making this argument, this symposium contribution will survey theories of philosophy, psychology, and sociology that show the complexity of social meaning. It argues that this dynamic thus complicates scholarly notions that criminal justice should do reparative work. Domestically, some scholars argue that criminal justice should restore harmed victims or reconstruct torn community norms after a moral breach. Internationally, scholars contend that criminal tribunals should effect transitional justice, promoting accountability for atrocity crimes — genocide, crimes against humanity, and war crimes — in order to heal post- conflict societies. And yet, often, indictment and prosecution have the opposite effect, fostering polarization and alienation.

Rothschild & Zhu on Community Policing in Contemporary China

Viola Rothschild and Hongshen Zhu (Duke University, Department of Political Science and University of Pennsylvania, Center for Study of Contemporary China) have posted Never Meet Your Heroes: Community Policing in Contemporary China on SSRN. Here is the abstract:

 

In autocracies, police are tasked with both providing law and order for citizens and monitoring and repressing political opposition for the regime. For ordinary citizens, the local police represent the most common and recognizable face of coercive state power, yet, we have little systematic knowledge about how everyday, street-level policing impacts citizen’s political attitudes and behaviors in modern autocracies. We study these relationships in the context of contemporary China, a high-capacity authoritarian state that, in recent years, has invested heavily in developing its domestic security apparatus. Drawing on literatures that emphasize the physical and spatial dimensions of autocratic power, we propose that citizens living geographically closer to police stations will be both more exposed to, and reminded of, police violence, incompetence, or malfeasance—issues endemic to local policing in many autocratic states. As a result, they will be less likely to trust and participate in community political institutions. Using data from a recent nationally-representative, probability sample survey and highly precise, geo-referenced information on the location of police stations, we find evidence to support our theory: citizens who live closer to police stations (1) feel less safe, (2) express lower levels of trust in community political institutions, and (3) participate less in neighborhood political affairs. Our findings indicate that the growing investment in the physical police state may further exacerbate local information capture and the alienation of citizens from the system.

Woods et al. on Police Data Collection and Transparency

Jordan Blair Woods, Ashley Oddo, Devyn D. Arredondo, and Yan Idrissov (University of Arizona - James E. Rogers College of Law, Arizona State University (ASU), University of Arizona, James E. Rogers College of Law and University of Arizona, James E. Rogers College of Law) have posted The Need for a Comprehensive Police Data Collection and Transparency Law in Arizona (Arizona State Law Journal (forthcoming 2023)) on SSRN. Here is the abstract:

 

Policing data is vital to improving police accountability and transparency. In 2021, Arizona enacted a law requiring law enforcement agencies in the state to collect and report data on officer use of force. Although a step in the right direction, the law does not require Arizona law enforcement agencies to collect and report data on other vital aspects of policing, such as traffic and pedestrian stops or complaints of officer misconduct.

This Article underscores a need for Arizona to adopt a comprehensive police data collection and transparency law. It presents original research from a comprehensive survey that we conducted on publicly available policing data in over 120 law enforcement agencies in the state, including city, county, campus, airport, state, and tribal agencies. Our findings demonstrate significant gaps and inconsistencies in the types of policing data that are publicly available across law enforcement agencies in Arizona.

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Maclin on Dead Infants and Taking the Fifth

Tracey Maclin (University of Florida Levin College of Law) has posted Dead Infants and Taking the Fifth (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This article is part of a symposium dedicated to the life and scholarship of Professor Sherry Colb. Professor Colb was a brilliant legal scholar and an admired teacher. Professor Colb and I first bonded over the fact that we both taught Constitutional Criminal Procedure.

In a 2013 blog, Professor Colb took a limited view of the Fifth Amendment’s Self-Incrimination Clause. She contended that if official brutality and false confessions could be eliminated, the rationale for giving people the right to refuse to provide truthful information about their own actions in open court would diminish substantially.

As someone who supports a broad interpretation of the Fifth, I offer a counterview of Professor Colb’s conception of the privilege by analyzing a 1990 Supreme Court ruling that supports her thesis – Baltimore City Department of Social Services v. Bouknight.

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Bertenthal & Lynch on Criminal History and the FSG

Alyse Bertenthal and Mona Lynch (Wake Forest University - School of Law and University of California, Irvine - Department of Criminology, Law and Society) have posted The calculus of the record: Criminal history in the making of US Federal Sentencing Guidelines (Forthcoming; Theoretical Criminology, 2016, Vol. 20(2) 145-164) on SSRN. Here is the abstract:

 

The Federal Sentencing Guidelines, developed by the United States Sentencing Commission in the I 980s, appear to exemplify the turn from individualization toward aggregated, rationalized risk management that ostensibly became hegemonic in the late 20th century. In this article, we challenge that presumption by building on Harcourt's (2007) argument that penal actuarialism emerged as part of the individualization project rather than as a repudiation of it. We trace how 'criminal history' came to be the primary mode for capturing defendant characteristics in the Guidelines formula, and delineate how time became the unit of quantification to transform criminal history into ordinal measures of current culpability. We draw three lessons from this case study: about the durability of old practices and logics; about how the individual penal subject lives on in sentencing regimes like the federal Guidelines system; and about the metrics of time and history as ways of knowing the juridical subject.

Murray on Original Understanding and Collateral Consequences

Brian Murray (Seton Hall Law School) has posted Original Understanding, Punishment, and Collateral Consequences (University of Pennsylvania Journal of Constitutional Law, Forthcoming 2024) on SSRN. Here is the abstract:

 

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose. A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not. Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.

This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment.

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Rahmati & Hyman on Crime, Punishment, and Expectations

Mohammad H. Rahmati and David A. Hyman (Sharif University of Technology and Georgetown University Law Center) have posted Crime, Punishment, and Expectations: Evidence From the Baltimore Light Rail on SSRN. Here is the abstract:

 

Expectations matter in many domains – but do they affect whether people obey the law? We surveyed riders on the Baltimore Light Rail (which operates on an “honor fare” system) about their perceptions regarding the frequency of ticket checks; the consequences of getting caught without a ticket; their self-reported reasons for purchasing a ticket before boarding; and their willingness to engage in fare evasion under semi-exigent circumstances. We report the results of a structural model estimating how expectations influence whether people obey the law. We find the average assessment of the likelihood of ticket check is quite accurate, but riders who (mistakenly) believe the probability is lower than it is are much more likely to fare evade. Further, expectations with regard to the likely consequences of fare evasion are also heterogeneous. In our counter-factual analysis, perceived fines have little impact on willingness to fare evade, but a higher perceived likelihood of apprehension has an appreciable impact. Because marginal riders are pivotal in the rate of fare evasion, debiasing expectations among the whole population has little impact.

Litt on Rap Lyrics in Criminal Proceedings

Lucy Litt has posted From Rhyming Bars to Behind Bars: The Problematic Use of Rap Lyrics in Criminal Proceedings (92 UMKC L. Rev. 121 p. 121-151 (2023)) on SSRN. Here is the abstract:

 

The use of rap lyrics as evidence in criminal proceedings distorts the art form and heightens the risk of wrongful prosecutions. Rap music is complex and sophisticated; it is an art form with its own history, norms, and conventions. Like other art forms (e.g., spy novels by John le Carré; ballets by George Balanchine; the Big Apple Circus; Shakespeare’s tragedies; Marvin Hamlisch and Edward Kleban’s “A Chorus Line;” or songs by Johnny Cash), 1 it serves as a creative outlet and can be a form of critical public commentary. Rap is an art form that often distorts or exaggerates reality. Unlike other fictional art forms (e.g., murder mysteries, TV crime show scripts), however, prosecutors increasingly introduce rap lyrics as evidence in criminal proceedings, where the real-life stakes can be very high.

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Today's criminal law/procedure cert grant

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

• Diaz v. United States: Whether in a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — Federal Rule of Evidence 704(b) permits a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters.

Dripps on Eavesdropping and the Fourth Amendment

Donald A. Dripps (University of San Diego School of Law) has posted Eavesdropping, the Fourth Amendment, and the Common Law (of Eavesdropping) (William & Mary Bill of Rights Journal, Vol. 32, 2024, Forthcoming) on SSRN. Here is the abstract:

 

Judges and scholars have long debated the Fourth Amendment’s application to eavesdropping, and the amendment’s relationship to the common law torts of trespass and false arrest. Remarkably, neither the jurisprudence, nor the commentary, has given more than cursory consideration to the common law of eavesdropping. This Article is the first to consider in detail the common law of eavesdropping as it relates to the Fourth Amendment.

The Fourth Amendment’s text does not protect “persons, houses, papers and effects” but rather protects the right to be secure in persons, houses, papers and effects. The common law treated eavesdropping as a violation of the right to the security of the home. Trespass actions were part of these protections, but only a part. The prevailing focus on founding-era tort law supports interpretations based on private-law property rights, enforced ex post by actions for damages. The common law’s indictment of eavesdroppers as a public nuisance points in very different directions.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Eliminating Criminal Law Evan D. Bernick Northern Illinois University - College of Law Date Posted: 19 Sep 2023	289
2.	Defense Lawyering in the Progressive Prosecution Era Jenny Roberts American University - Washington College of Law Date Posted: 09 Oct 2023	106
3.	The Death Penalty in Bangladesh: A Review Muhammad Mahbubur Rahman and Psymhe Wadud Department of Law, University of Dhaka and University of Dhaka Date Posted: 13 Sep 2023	103
4.	The Forgotten Jurisprudence of Parole and State Constitutional Doctrines of Vagueness Kristen Bell University of Oregon School of Law Date Posted: 18 Oct 2023	90
5.	Why Public Opinion on the Death Penalty Doesn’t Matter in China Michelle Miao The Chinese University of Hong Kong, Faculty of Law Date Posted: 12 Sep 2023	79
6.	R c Yombo: Affirming and Obscuring the De Minimis Defense Colton Fehr Thompson Rivers University, Faculty of Law Date Posted: 01 Sep 2023	70
7.	Humanity, Race, and Indigeneity in Criminal Sentencing: Social Change in America, Canada, Europe, Australia, and New Zealand Mugambi Jouet University of Southern California Gould School of Law Date Posted: 20 Sep 2023 [8th last week]	67
8.	A Comprehensive Analysis of the Effect of Crime-Control Policies on Murder Carlisle E. Moody College of William and Mary - Department of Economics Date Posted: 11 Oct 2023 [9th last week]	66
9.	Constitutional Crimes Michael L. Smith St. Mary's University School of Law Date Posted: 28 Sep 2023 [7th last week]	63
10.	Death Penalty in Asia Special Issue: Introduction Timothy Lindsey and Helen Pausacker Centre for Indonesian Law, Islam and Society, Melbourne Law School and Centre for Indonesian Law, Islam and Society, Melbourne Law School Date Posted: 08 Nov 2023	54

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The (Local) Prosecutor Carissa Byrne Hessick and Rick Su University of North Carolina School of Law and University of North Carolina School of Law Date Posted: 19 Sep 2023	150
2.	Government Purchases of Private Data Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 13 Oct 2023 [5th last week]	132
3.	Discriminatory Discretion: Theory and Evidence From Use of Pretrial Algorithms Diag Davenport University of Chicago, Booth School of Business, Students Date Posted: 16 Oct 2023 [4th last week]	118
4.	Defense Lawyering in the Progressive Prosecution Era Jenny Roberts American University - Washington College of Law Date Posted: 09 Oct 2023 [3rd last week]	106
5.	The Imposition of Pretrial Conditions on Released Federal Defendants: The Overuse of Conditions Without Providing any Measurable Benefits Thomas H. Cohen and William Hicks Jr. Government of the United States of America - Administrative Office of the U.S. Courts and District of Nevada Pretrial Services Office Date Posted: 03 Oct 2023 [7th last week]	80
6.	Victim, Reconstructed: Sex Crimes Experts and the New Rape Paradigm Deborah Tuerkheimer Northwestern University - Pritzker School of Law Date Posted: 05 Oct 2023 [8th last week]	78
7.	Toward a More Comprehensive Plea Bargaining Regulatory Regime Russell D. Covey Georgia State University College of Law Date Posted: 13 Sep 2023 [9th last week]	73
8.	Intellectual Disability, Categorical Mitigation, and Punishment Katie Kronick University of Baltimore School of Law Date Posted: 09 Sep 2023 [6th last week]	73
9.	A New Right to Procedural Accuracy: A Governance Model for Digital Evidence in Criminal Proceedings Radina Stoykova University of Groningen - Faculty of Law Date Posted: 24 Aug 2023 [10th last week]	72
10.	Charging Abortion Milan Markovic Texas A&M University School of Law Date Posted: 13 Sep 2023 [new to top ten]	70

Norris & Rose on Criminal Justice Fees and Fines

Samuel Norris and Evan K. Rose (University of Chicago and University of Chicago) have posted Laffer’s Day in Court: The Revenue Effects of Criminal Justice Fees and Fines on SSRN. Here is the abstract:

 

Many jurisdictions levy sizable fines and fees (legal financial obligations, or LFOs) on criminal defendants. Proponents argue LFOs are a “tax on crime” that funds courts and provides deterrence; opponents argue they do neither. We examine the fiscal implications of lowering LFOs. Incentives to default generate a “Laffer” curve with revenue eventually decreasing in LFOs. Using detailed administrative data, however, we find few defendants demonstrably on the right-hand side of the curve. Those who are tend to be poor, Black, and charged with felonies. As a result, decreasing LFOs for the average defendant would come at substantial cost to governments.

Frampton on The First Black Jurors

Thomas Frampton (University of Virginia School of Law) has posted The First Black Jurors and the Integration of the American Jury (New York University Law Review, 2024) on SSRN. Here is the abstract:

 

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows, Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship. A broader historical perspective—one that centers Black activists in the decades before the ratification of the Fourteenth Amendment in 1868—offers a new way of thinking about the relationship between race, rights, citizenship, and the jury.

Litt on Children as Grand Jury Witnesses

Lucy Litt has posted Underage and Unprotected: Federal Grand Juries, Child Development, and the Systemic Failure to Protect Minors Subpoenaed as Witnesses (University of Cincinnati Law Review, Vol. 92, No. 89, 2023) on SSRN. Here is the abstract:

Grand juries in the United States were originally intended to protect people from unwarranted criminal prosecution by the government; however, criticism of federal grand juries in the U.S. throughout the past five decades demonstrates that these deliberative bodies protect prosecutors at the expense of the people subjected to their investigations. Worse still, federal grand jury proceedings circumvent fundamental constitutional rights, direct judicial oversight, and many of the procedural protections of criminal trials; they enable prosecutors to strip unaccused individuals subpoenaed solely for witness testimony of their safety, rights, and liberty. Prosecutorial misconduct has received increasingly widespread attention, especially in recent years, with some prosecutors championing “progressive prosecution” reforms. Nonetheless, federal grand jury proceedings continue to occur in secrecy, subject to minimal judicial review or oversight by design.

Within this often overlooked and under-observed system, children subpoenaed as federal grand jury witnesses do not have access to an attorney while inside the federal grand jury room. They face skilled prosecutors, interrogation, manipulation, and skeptical grand jurors entirely on their own. This is problematic for any grand jury witness, but it is especially problematic for minors.

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Perlin et al. on Barefoot and the Death Penalty Trial

Michael L. Perlin, Talia Roitberg Harmon, Maren Geiger, and Moana Houde-Camirand (New York Law School, Niagara University, Niagara University, Department of Criminal Justice and Willamette University College of Law) have posted “Their Futures, So Full of Dread”: How Barefoot’s Contamination of the Death Penalty Trial Process Continues on SSRN. Here is the abstract:

 

Forty years ago, in its most roundly-criticized criminal procedure decision in modern history, the Supreme Court, in Barefoot v. Estelle (463 U.S. 880 (1983)), a decision premised on testimony by the responses to a hypothetical of a witness who had never directly evaluated the defendant, ruled that such testimony as to future dangerousness – testimony that had concluded there was a “100% chance” the defendant would commit more crimes if released into society -- was permissible. Over a stinging dissent by Justice Blackmun, the Supreme Court had ruled in Barefoot that it was not constitutional error for psychiatrists to testify that the defendant –whom they had never interviewed nor evaluated -- “would probably commit further acts of violence and represent a continuing threat to society.” The problems caused by Barefoot plague the legal system today, especially since we have learned more about the meaning of “dangerousness” in this context, the accuracy of predictivity, the use of assessment instruments, the heuristics used by jurors in coming to conclusions about dangerousness, and more.

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Carroll on Pretrial Detention Reform

Jenny E. Carroll (University of Alabama - School of Law) has posted an abstract of The Ever-Shifting Ground of Pretrial Detention Reform (Annual Review of Law and Social Science, Vol. 19, pp. 75-91, 2023) on SSRN. Here is the abstract:

 

In the past six decades, pretrial detention systems have undergone waves of reform. Despite these efforts, pretrial jail populations across the country continue to swell. The causes of such growth in jail populations are difficult to pinpoint, but some are more readily apparent: Fear over rising crime rates, judicial reluctance to release accused persons, and monetary burdens associated with release have all contributed to increased detention pretrial across criminal legal systems in the United States. This article examines various pretrial detention reform efforts and highlights the need for greater research in the area.

Friedman on The Rockefeller Foundation's Influence on the MPC

Daniel Friedman (Villanova University - Charles Widger School of Law) has posted "Silent Revolution": The Rockefeller Foundation's Invisible Influence on the Model Penal Code (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Forthcoming) on SSRN. Here is the abstract:

 

For over a hundred years, rich families have been channeling their wealth through private foundations to remake American society, but their immense impact on law is still poorly understood. This article begins to fill that gap by studying the almost completely unknown origins of one of the most important reforms in the history of American criminal law: the Model Penal Code (MPC). To show how the MPC was influenced by its funder, this article presents unpublished documents from the archives of two of the most important private organizations in American law: the American Law Institute (ALI) and the Rockefeller Foundation, which gave the ALI the money for some of its most important endeavors. The MPC is one such project, an enormous undertaking to create a complete code of criminal law that states could adopt in whole or in part to replace their messy mass of antiquated and contradictory common law crimes. Many did just that after the MPC’s completion in 1962.

The MPC was both directly and indirectly influenced by Rockefeller money. Their goals were progressive—aimed at bringing order to legal chaos based on new scientific understandings and humane ideals about how to help offenders—but have had some devastatingly oppressive unintended consequences.

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Roth on Neurosearches

Josh Roth has posted Neurosearches (109 Cornell L. Rev. (2024 Forthcoming)) on SSRN. Here is the abstract:

 

Neurotechnology is advancing exponentially, and the laws of data privacy and security cannot keep pace. Soon, governments will begin exploiting this technology in criminal investigations with what this Note calls “neurosearches.” Scholars have argued against the compelled gathering of neurological evidence as a violation of the Fifth Amendment, likening it to testimony and thus barred as self-incrimination. But the lines are not so fortified.

This Note operates under the premise that compelled gathering of brain data survives a Fifth Amendment challenge and evaluates these neurosearches under the Fourth Amendment. Part I of this Note summarizes the contemporary state of neuroscience in the commercial marketplace and in the eyes of the law. Part II outlines the Supreme Court’s Fourth Amendment jurisprudence, detailing its application to technologically advanced searches. Part III contemplates the disposition of challenges to neurosearches based on the jurisprudence described in Part II.

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McPherson & Blazucki on Data and Missing Native Americans

Lori McPherson and Sarah Blazucki (Government of the United States of America - United States Marshals Service (USMS) and Independent) have posted 'Statistics are Human Beings with the Tears Wiped Away': Utilizing Data to Develop Strategies to Reduce the Number of Native Americans Who Go Missing (Seattle University Law Review, Forthcoming) on SSRN. Here is the abstract:

 

It is possible to reduce the number of AI/AN persons who go missing altogether and to reduce the amount of time that AI/AN persons are missing. To do so requires quality law enforcement responses, as well as acknowledging and effectively responding to the circumstances that result in people going missing. The field of public health has done an excellent job of identifying those drivers; any holistic solution to the issue of missing AI/AN must also address the issues identified by that discipline.

This Article addresses the complexities of investigating missing person cases involving American Indians and Alaskan Natives. Section I begins with a discussion of the available data about missing persons and the various legal requirements for submitting that data. Section II outlines what is known about missing AI/AN individuals and the practical challenges to collecting accurate and complete data. Section III discusses legal considerations about missing person investigations involving AI/AN persons and the legal landscape as it affects collection of data about those cases. Finally, Section IV connects the data and legal considerations discussed in Sections I through III with possible public health solutions and other strategies that can reduce the number of missing AI/AN individuals.