CrimProf Blog

Heise & Nance on Student Discipline

Michael Heise and Jason P. Nance (Cornell Law School and University of Florida Levin College of Law) have posted Do Perceptions Become Reality?: Exploring Principals’ Perceptions, Schools’ SRO/Police Presence, and Student Discipline Reporting Policies on SSRN. Here is the abstract:

 

While recent scholarship generally emphasizes how public school principals’ perceptions influence various school safety practices, far less is understood about how principals’ perceptions of school crime risk and academic climate might inform schools’ decisions on specific school safety outcomes, including a school’s SRO/police presence and policies on whether to report student disciplinary incident to law enforcement agencies. Using data drawn from the 2017-18 School Survey on Crime and Safety and 2,500 public schools in the United States, this study examines these questions. The results make clear that the influence of principals’ perceptions vary across different school safety outcomes. Equally important is that the variation appears to be non-random. While the uneven salience of principals’ perceptions does not necessarily dilute their importance to school policies, it does underscore the need for a more granular accounting and understanding of how various important school-level safety outcomes arise.

Ivanov on Redress for Damages from Crimes

Dmitriy Ivanov (Moscow State Institute of International Relations (MGIMO)) has posted Procedural and Organizational Framework of Cooperation between Preliminary Investigation Agencies and Inquiry Bodies in Order to Secure Redress for Damage Caused by a Crime on SSRN. Here is the abstract:

 

This article aims to study international legal instruments that govern the compensation for crime victims in particular countries. In addition, the study aims to conduct a comparative analysis of different approaches to crime victims’ compensation stipulated in the legislation of foreign countries. The obtained results help conclude that approaches to compensation should be improved to comply with modern requirements and compensation methods.

Schlanger on Prison and Jail Civil Rights/Conditions Cases

Margo Schlanger (University of Michigan Law School) has posted Prison and Jail Civil Rights/Conditions Cases: Longitudinal Statistics (Appendix to Slamming the Courthouse Door: 25 Years of Evidence for Repealing the Prison Litigation Reform Act, Prison Policy Initiative (April 26, 2021)) on SSRN. Here is the abstract:

 

The Tables show longitudinal statistics about case filings, features, and outcomes, for jail/prison civil rights and conditions cases and for the entire federal civil docket, grouped by case category.

Continue reading

Brough on Transportation Subsidies and Failures to Appear

Rebecca Brough, Matthew Freedman, Daniel E. Ho and David Phillips (University of Notre Dame, University of California, Irvine - Department of Economics, Stanford Law School and Wilson Sheehan Lab for Econonomic Opportunities, Department of Economics) have posted Can Transportation Subsidies Reduce Failures to Appear in Criminal Court? Evidence from a Randomized Controlled Trial on SSRN. Here is the abstract:

 

The failure to appear (FTA) for a scheduled court hearing can have serious consequences for a criminal defendant. Many have speculated that transportation is a material barrier to court appearance. We provide evidence from the first randomized controlled trial of transportation subsidies to reduce FTAs, conducted jointly with public defenders and the transportation authority in Seattle, Washington. The most intensive intervention was a transit card providing 2-3 months of free public transportation. We find little evidence that transportation subsidies reduce FTAs. The treatment group had a similar FTA rate as the control group, and we can rule out with 95% confidence that transit subsidies reduced the FTA rate by more than six percentage points. While transportation subsidies might be more effective in reducing FTAs if combined with other supportive services or outreach, our results suggest that transportation subsidies alone have limited benefits for this aspect of criminal justice.

Roberts on Manslaughter Involving Multiple Offenders and Victims

Julian V. Roberts (University of Oxford - Centre for Criminology) has posted Sentencing Manslaughter involving Multiple Offenders and Victims: The Challenge of Calibrating Culpability on SSRN. Here is the abstract:

 

Sentencing for multiple offences poses many challenges and becomes even more complex when the crimes resulted in fatalities. This article uses the sentences imposed following convictions in the Essex lorry deaths to pose some general questions about the sentencing of multiple victim manslaughters. Four principal offenders were convicted of 39 counts of unlawful act manslaughter as well as conspiracy to facilitate unlawful immigration into the UK. The analysis identifies several ways in which the sentences ultimately imposed failed to adequately distinguish between offenders of very different levels of culpability. First, the offenders were assigned to the same level of culpability. Second, despite their different culpability levels, the same starting point was imposed on all offenders. Third, the multiple offence uplifts were similar across differentially culpable offenders. Fourth, the differential additional punishments for the conspiracy conviction – which would have separated the offenders' time in custody further – were washed out by being made concurrent. Some general lessons for sentencing in these cases are drawn, regarding the application of the Sentencing Council's guidelines.

Lee & Augusto on Crime and COVID-19

Steven James Lee and Daniel Augusto (The American College of Financial Services and Northcentral University) have posted Crime in the New U.S. Epicenter of COVID-19 on SSRN. Here is the abstract:

 

In the latter half of 2020, Los Angeles was dubbed by the media and academicians as the latest epicenter of COVID-19 in the United States. Using time-series analysis on Los Angeles Police Department crime data from 2017 through 2020, this paper tests the economic theory of crime, routine activities theory, social isolation theory, household bargaining theory, and structural vulnerability theory to determine whether they accurately predicted specific crime rate movements in the wake of COVID-19 in the city of Los Angeles. Economic theory of crime and routine activities theory were mostly supported. Social isolation theory and household bargaining theory were partially supported. Structural vulnerability theory was not supported. Implications and future research are also discussed.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Domestic Terrorism, Attack on the U.S. Capitol, and the Second Impeachment of Donald Trump Lawrence J. Trautman Prairie View A&M University - College of Business Date Posted: 02 Apr 2021 [3rd last week]	190
2.	Restoring the Historical Rule of Lenity as a Canon Shon Hopwood Georgetown University Law Center Date Posted: 18 Mar 2021 [1st last week]	185
3.	Procedure's Racism Russell M. Gold University of Alabama School of Law Date Posted: 08 Mar 2021 [new to top ten]	163
4.	Moral Intuitions and Moral Nativism John Mikhail Georgetown University Law Center Date Posted: 15 Dec 2020 [2nd last week]	149
5.	A Framework Theory of Punishment Tatjana Hörnle Max Planck Institute for the Study of Crime, Security and Law Date Posted: 02 Mar 2021 [4th last week]	118
6.	Constitutional Liquidation, Surety Laws, and the Right to Bear Arms Robert Leider George Mason University - Antonin Scalia Law School, Faculty Date Posted: 04 Nov 2020	98
7.	Limiting Consent in Criminal Law: DPP v Brown [2018] IESC 67 David Prendergast School of Law, Trinity College Dublin Date Posted: 22 Mar 2021	84
8.	English Law of Non-Fatal Offences Against the Person: Outline and Case Summaries Neil Chisholm Sungkyunkwan University Date Posted: 02 Feb 2021 [9th last week]	83
9.	White Collar Crime: Cases, Material, and Problems - Chapter 1 (Overview of White Collar Crime) Kelly Strader, John P. Anderson and Mihailis Diamantis Southwestern Law School, Mississippi College School of Law and University of Iowa - College of Law Date Posted: 02 Feb 2021 [8th last week]	77
10.	The End of Comparative Qualified Immunity Colin Miller University of South Carolina School of Law Date Posted: 02 Mar 2021	70

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Black on Black Representation Alexis Hoag Columbia Law School Date Posted: 19 Mar 2021	315
2.	Damned Lies Jeremy Waldron New York University School of Law Date Posted: 04 Mar 2021 [new to top ten]	221
3.	Procedure's Racism Russell M. Gold University of Alabama School of Law Date Posted: 08 Mar 2021 [new to top ten]	163
4.	Low-Ball Rural Defense Maybell Romero Northern Illinois University College of Law Date Posted: 11 Mar 2021 [3rd last week]	159
5.	The Constitutional Right to an Implicit Bias Jury Instruction Colin Miller University of South Carolina School of Law Date Posted: 18 Feb 2021 [4th last week]	143
6.	Rock and Hard Place Arguments Jareb A. Gleckel and Grace Brosofsky Cornell University - Law School and Independent Date Posted: 22 Feb 2021 [5th last week]	132
7.	From Statues to Statute: Protests and Vigils in the Time of COVID-19 Jamie Grace Sheffield Hallam University Date Posted: 30 Mar 2021 [new to top ten]	119
8.	Trump v. New York, Clapper, and . . . the Fourth Amendment? How Inconsistent Doctrines are Under-Protecting Privacy Jareb A. Gleckel and Grace Brosofsky Cornell University - Law School and Independent Date Posted: 22 Feb 2021 [7th last week]	109
9.	A Three-Pillar Approach to Achieving Trustworthy Use of AI and Emerging Technology in Policing in England and Wales: Lessons From the West Midlands Model Marion Oswald University of Northumbria at Newcastle Date Posted: 13 Apr 2021 [new to top ten]	101
10.	The Challenges of Forensic Genealogy: Dirty Data, Electronic Evidence, and Privacy Concerns Divya Ramjee and Katelyn N Ringrose American University (Washington, DC) and affiliation not provided to SSRN Date Posted: 28 Mar 2021 [9th last week]	99

Gentithes on Rhetoric and Nostalgia in the Criminal Justice Reform Movement

Michael Gentithes (University of Akron School of Law) has posted Rhetoric and Nostalgia in the Criminal Justice Reform Movement (12 ConLawNOW 129 (2021)) on SSRN. Here is the abstract:

 

Today’s movement for criminal justice reform and its attendant "defund the police" slogan contain nuanced calls to redirect public funds in ways that will both control crime and support downtrodden neighborhoods. But the language in those calls can easily be misinterpreted. Such poor messaging misleads both the movement’s members and the public in two important ways. First, it repeats many of the mistakes made by protest anthems of the past. For too many Americans enduring today’s all-too-real dystopia, calls to defund sound like calls to anarchy, not arguments for peaceable, sensible reforms. Second, defunding rhetoric contains an element of historical nostalgia, suggesting that a return to underpoliced neighborhoods will allow young men of color to flourish. But there are risks in discriminatory underpolicing as well as discriminatory overpolicing; the former led many liberal and African American activists in the 1960s and 70s to call for greater crime control and police presence, which had disastrous consequences still playing out today.

Continue reading

Conti-Brown on Marks and Sentencing Reform

Peter Conti-Brown (University of Pennsylvania - The Wharton School) has posted The Principled Leadership of Middle Management: Stephen F. Williams’s Liberal Critique of Marks (Yale Journal on Regulation, Vol. 38, No. 3, 2021) on SSRN. Here is the abstract:

 

Most law students spend their first year—or sometimes much longer—struggling to discern legal rules from judicial opinions. That is true even for relatively straightforward opinions. When they encounter splintered opinions—especially cases where no opinion commands a majority—the exercise becomes more difficult even for the most seasoned lawyer.

The U.S. Supreme Court, in an effort to add coherence to these not-infrequent instances of judicial disarray, created a rule to guide this process. The so-called Marks rule instructs courts, including the Supreme Court itself, to honor horizontal and vertical stare decisis even in the face of splintered decisions by discerning what proposition, if appropriately narrowed, would have commanded a majority. It is a hypothetical exercise and a controversial one. Legal scholar Richard Re has recently recommended that we cast it aside entirely, a position I embrace below.

Continue reading

Ezer et al. on Criminalization of Poverty and Marginalization

Tamar Ezer, David Stuzin and Franco Piccinini (University of Miami - School of Law, University of Miami - School of Law and University of Miami - University of Miami Law Review) have posted Foreword: Addressing the Criminalization of Poverty and Marginalization (75(1) University of Miami Law Review CAVEAT (2020)) on SSRN. Here is the abstract:

 

Across the globe and throughout the United States, governments use petty offenses, such as loitering laws, to exert social control over marginalized communities. Petty offenses enable the policing of public spaces to reinforce social hierarchies and rigid gender norms. People experiencing homelessness regularly face the threat of criminal sanctions for fulfilling basic needs, and fines and fees in the justice system trap the poor in a cycle of poverty and incarceration. In September 2019, the Human Rights Clinic at the University of Miami School of Law hosted a symposium on challenging petty offenses that criminalize poverty, marginalization, and gender nonconformity, in collaboration with the University of Miami Law Review, University of Miami Race & Social Justice Law Review, University of Miami School of Communication, National Law Center on Homelessness & Poverty, and the Open Society Foundations’s Human Rights Initiative.

Continue reading

Garner on District Court En Bancs

Maggie Gardner (Cornell Law School) has posted District Court En Bancs (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Despite the image of the solitary federal district judge, there is a long but quiet history of federal district courts deciding cases en banc. District court en bancs predate the development of en banc rehearings by the federal courts of appeals and have been used to address some of the most pressing issues before federal courts over the last one hundred years: Prohibition prosecutions, bankruptcies during the Depression, labor unrest in the 1940s, protracted desegregation cases, asbestos litigation, and the constitutionality of the U.S. Sentencing Guidelines, to name a few. This Article gathers more than 140 examples of voluntary collective adjudication by district judges. While its aim is primarily descriptive and analytical, it also offers a preliminary normative defense of the occasional use of such proceedings. Building that defense requires consideration of the district courts’ inherent authority; the advisability of ad hoc procedure; and the limits of available procedural alternatives for promoting such judicial values as economy, uniformity, and decisional legitimacy.

Continue reading

Pruitt & Davies on Rural Access to Justice

Lisa R. Pruitt and Andrew Davies (University of California, Davis - School of Law and Southern Methodist University – Dedman School of Law) have posted Investigating Access to Justice, the Rural Lawyer Shortage, and Implications for Civil and Criminal Legal Systems (Research Methods for Rural Criminologists (2022 Forthcoming)) on SSRN. Here is the abstract:

 

Access to justice (A2J) is associated with a number of metrics aimed at assessing the extent to which people enjoy equal access to courts, including pre-trial means for resolving disputes. While the concept is typically associated with civil justice systems, many factors associated with that context overlap with criminal justice system concerns. Central among these and of growing significance in the rural context is a worsening attorney shortage. When lawyers are not readily available, A2J is undermined, and costs to litigants and courts rise.

Continue reading

Hayat on Housing the Decarcerated

Norrinda Hayat (Rutgers Law School - Newark) has posted Housing the Decarcerated (California Law Review, Vol. 110, 2022) on SSRN. Here is the abstract:

 

The coronavirus pandemic exposed an issue at the intersection of the public health, carceral and housing crises – the lack of housing for the recently decarcerated. Early in the pandemic calls came to release incarcerated persons and cease arrests in light of the risks posed by failing to be able to socially distance while incarcerated. At the same time, the pandemic forced a national conversation about the sheer number of unhoused persons in our country. The pandemic created an emergent argument for both broad scale decarceration and publicly funded housing. The practical process of securing housing for the recently decarcerated, however, is fraught because of what is described in this article as the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court case, HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels – eligibility, enforcement and set asides.

Continue reading

Zajac on Criminal Jurisdiction over the Internet

Dominik Zając (Jagiellonian University, Department of Criminal Law) has posted Criminal Jurisdiction over the Internet: Jurisdictional Links in the Cyber Era (Cambridge Law Review 2019) on SSRN. Here is the abstract:

 

A result of the creation of the Internet is that the real world no longer is the only space in which interpersonal interaction occurs. Now, a completely new, somehow parallel-to-reality plane exists that escapes geographical limitations. It forces a redefinition of the concepts of sovereignty and jurisdiction. Individual countries, to some extent grouped, have begun to seek any foothold that allows them to regulate and punish behaviors undertaken by Internet users. This study is a critical analysis of solutions used to determine the scope of criminal jurisdiction in cyberspace. Considering the intensive development of social interactions undertaken using the Internet, it appears justified to move away from a rigid model of jurisdictional rules and shift to a discursive model based on weighing the interests of states. The considerations are divided into six parts. Section II presents a short description of a method based on classical jurisdictional rules. Section III includes a discussion of traditional approach defects, particularly considering those features that prevent the application of that traditional approach to behaviors undertaken using cyberspace. Section IV discusses an alternative method of determining the scope of jurisdiction based on important elements of the social situation (jurisdictional links). Sections V and VI parts are devoted to an analysis of individual nexuses. In Section VII, the method of weighing the significance of the links is presented. This method allows granting a particular state the right to regulate or impose a penalty for a given behavior on the Internet.

Doleac on Encouraging Desistance from Crime

Jennifer L. Doleac (Texas A&M University - Department of Economics) has posted Encouraging Desistance from Crime on SSRN. Here is the abstract:

 

Half of individuals released from prison in the United States will be re-incarcerated within three years, creating an incarceration cycle that is detrimental to individuals, families, and communities. There is tremendous public interest in ending this cycle, and public policies can help or hinder the reintegration of those released from jail and prison. This review summarizes the existing empirical evidence on how to intervene with existing offenders to reduce criminal behavior and improve social welfare.

Meyn on Race-Based Remedies in Criminal Law

Ion Meyn (University of Wisconsin Law School) has posted Race-Based Remedies in Criminal Law on SSRN. Here is the abstract:

 

This Article evaluates the constitutional feasibility of using race-based remedies to address racial disparities in the criminal system. Compared to white communities, communities of color are over-policed and over-incarcerated. Criminal system stakeholders recognize these conditions undermine perceptions of legitimacy critical to ensuring public safety. As jurisdictions assiduously attempt race-neutral fixes, they also acknowledge the shortcomings of such interventions. Nevertheless, jurisdictions dismiss the feasibility of deploying more effective race-conscious strategies due to the shadow of a constitutional challenge. The apprehension is understandable. Debates around affirmative action in higher education and government contracting reveal fierce hostility toward race-based remedies.

Continue reading

Burri & von Bothmer on The EU and AI

Thomas Burri and Fredrik von Bothmer (University of St. Gallen and DaimlerChrysler) have posted The New EU Legislation on Artificial Intelligence: A Primer on SSRN. Here is the abstract:

 

On 21 April 2021, the Commission presented its long-awaited proposal for new legislation of the European Union on artificial intelligence. This primer explains and discusses the proposed regulation.

Jouet on Foucault, Prison, and Human Rights

Mugambi Jouet (McGill Faculty of Law) has posted Foucault, Prison, and Human Rights: A Dialectic of Theory and Criminal Justice Reform (Theoretical Criminology (forthcoming 2021)) on SSRN. Here is the abstract:

 

Michel Foucault’s advocacy toward penal reform in France differed from his theories. Although Foucault is associated with the prison abolition movement, he also proposed more humane prisons. The article reframes Foucauldian theory through a dialectic with the theories of Marc Ancel, a prominent figure in the emergence of liberal sentencing norms in France. Ancel and Foucault were contemporaries whose legacies are intertwined. Ancel defended more benevolent prisons where experts would rehabilitate offenders. This evokes exactly what “Discipline and Punish” cast as an insidious strategy of social control. In reality, Foucault and Ancel converged in intriguing ways. The dialectic offers another perspective on Foucault, whose theories have fostered skepticism about the possibility of progress. While mass incarceration’s rise in America may evoke a Foucauldian dystopia, the relative development of human rights and dignity in European punishment reflects aspirations that Foucault embraced as an activist concerned about fatalistic interpretations of his theories.

Maclin on Fifth Amendment Protection for Corporate Officers

Tracey Maclin (Boston University - School of Law) has posted Long Overdue: Fifth Amendment Protection for Corporate Officers (Forthcoming Boston University Law Review, 2021) on SSRN. Here is the abstract:

 

The Supreme Court has extended to corporations many of the same constitutional rights that were originally intended to protect people. One notable exception, however, is the Fifth Amendment’s prohibition on compulsory self-incrimination. “Corporations may not take the Fifth.” There is a long line of cases dating back to the start of the twentieth century stating – but never directly holding – that corporations are not protected by the self-incrimination clause.

But the fact that a corporation cannot invoke the Fifth does not explain why a person who works for a corporation cannot. As a matter of text, the Fifth Amendment draws no distinction among the “person[s]” it protects; everyone is protected – citizens and non-citizens. And the amendment certainly does not distinguish among “person[s]” depending on where they work or whether they are employed or not. Indeed, because the Justices agree, as Justice Scalia once noted, that “[a]ll the provisions of the Bill of Rights set forth the rights of individual men and women – not, for example, of trees or polar bears,” an individual who works for a corporation—for example, the president or treasurer—is protected by the Fifth, when forced to produce corporate records that will personally incriminate him.

Continue reading