CrimProf Blog

Harrington & Binder on Race and the Felony Murder Rule

Alexandra Harrington and Guyora Binder (University at Buffalo Law School and University at Buffalo Law School) have posted Racially Disparate and Disproportionate Punishment of Felony Murder: Evidence from New York on SSRN. Here is the abstract:

 

America’s peculiar institution of felony murder liability has long been criticized as cruel and pointless, particularly as applied to defendants who did not kill. Yet data collection practices in the criminal legal system make felony murder difficult to study empirically. This article presents recently uncovered evidence of the racially disparate application of felony murder law, as well as increased disparities for those who have been convicted as accomplices. This study of felony murder arrest and disposition in New York is one of the first to reach beyond dispositions to examine the behavior punished, and to thereby compare patterns in arrest, prosecution, and conviction of accused principals with accomplices not alleged to have killed. This study is also one of the first to report the surprising scale of liability under felony murder law for individuals who did not kill—half of all people convicted of felony murder in the years measured—as well as for people who appear to have caused death inadvertently. It finds substantial racial disparities in arrests and convictions for felony murder compared to other forms of second-degree murder. These disparities are starker for teens, who make up at least a quarter of the dataset. Finally, it uncovers a shocking phenomenon: hundreds of arrests—mostly concentrated in New York City—of almost exclusively Black and Hispanic people for the fictitious crime of attempted felony murder. In New York, it seems, the worst of felony murder is reserved for defendants of color.

Kovarsky on The Victims' Rights Mismatch

Lee Kovarsky (University of Texas at Austin, School of Law) has posted The Victims' Rights Mismatch on SSRN. Here is the abstract:

A puzzling mismatch lurks inside victims’ rights law. Victims’ rights are most easily justified when held by living victims, but the cultural movement has triumphed largely as a response to crime-caused death. This Article identifies the mismatch between victims’ rights and their justifications in dead-victim cases, analyzes the normative questions involved, and recommends an institutional response.

The mismatch persists because American jurisdictions assign a single bundle of rights to anyone denominated as a “victim.” In dead-victim cases, however, the primary bearers of interpersonal harm are gone. Instead, their rights are assumed by aggrieved family members and legal estates. In those third-party scenarios, justifications for victim participation and influence collapse.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Stopping Scams Against Consumers: Roadmap for a National Strategy Nick Bourke Independent Date Posted: 24 Jul 2024	191
2.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	177
3.	Rights, Reasons, and Culpability in Tort Law and Criminal Law Gregory Antill Columbia Law School Date Posted: 27 Jun 2024	128
4.	Abolish Conspiracy Evan D. Bernick Northern Illinois University - College of Law Date Posted: 07 Aug 2024 [new to top ten]	100
5.	Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment Alexandra Giannidi University of Cambridge Date Posted: 25 Jun 2024 [7th last week]	82
6.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024	80
7.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [8th last week]	73
8.	Double Counting in Capital Sentencing Statutes Sunayna Nair Columbia University - Columbia Human Rights Law Review Date Posted: 26 Jun 2024 [9th last week]	69
9.	Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver in Criminal Cases Christopher Slobogin and Kate Weisburd Vanderbilt University - Law School and UC Law, San Francisco Date Posted: 17 Jun 2024 [10th last week]	65
10.	From Visibility to Shadows: The Impact of Police Discretion on Prostitution in Response to Legal Changes Yutian An, Yingjie Fan, Xuancheng Qian and Leo Yang Yang Harvard University - Harvard Law School, Princeton University, Princeton University and Stanford University - Centre on China’s Economy and Institutions Date Posted: 28 Jun 2024 [new to top ten]	57

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Against Privacy Essentialism Daniel J. Solove George Washington University Law School Date Posted: 14 May 2024	742
2.	A Large-Scale Study of the Police Retention Crisis Ben Grunwald Duke University School of Law Date Posted: 26 Jun 2024	370
3.	Prosecutor Transparency Project: Racial Disparities Study (Washtenaw County, Michigan) Grady Bridges and J.J. Prescott Independent and University of Michigan Law School Date Posted: 31 Dec 2023	307
4.	Loper Bright and the Great Writ: Will the New Constitutionalists End "Treason to the Constitution," Restore the Judicial Power, and Make the Law of the Land Supreme Again? [Forthcoming in Columbia Human Rights Law Review, 2024] James S. Liebman and Anthony Amsterdam Columbia University - Law School and New York University School of Law Date Posted: 11 Jul 2024	258
5.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	177
6.	Minimal Rationality and the Law of Evidence Ronald J. Allen, Michael S. Pardo, William J. Lawrence and Christopher Smiciklas Northwestern University Pritzker School of Law, Georgetown University Law Center, Sidley Austin LLP and Northwestern University - Pritzker School of Law Date Posted: 11 Apr 2024	131
7.	The Paper Prisons Racial Justice Act Data Tool Colleen V. Chien, William A. Sundstrom, Akhil Raj, Bennett Cyphers and Rayna Saron UC Berkeley School of Law, Santa Clara University - Leavey School of Business - Economics Department, Santa Clara University, UC Berkeley School of Law and UC Berkeley School of Law Date Posted: 05 Jun 2024	119
8.	What Fischer v. United States Gets Wrong About Prosecutorial Discretion Cindy J. Cho Indiana University Maurer School of Law Date Posted: 26 Jun 2024	103
9.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024	80
10.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024	72

Carrington on Annual Review of Criminal Procedure

William Tucker Carrington (University of Mississippi - School of Law) has posted Preface on SSRN. Here is the abstract:

 

This is a preface to the following:

The Annual Review of Criminal Procedure (ARCP) is a comprehensive, topic-by-topic summary of federal criminal procedure. The goal of the ARCP—which is written, updated, and edited by members of The Georgetown Law Journal—is to provide readers with an objective, concise, and accurate overview of criminal procedure in the federal courts. The current edition of the ARCP, published in September 2023, represents the fifty-second year in which the editors and staff of The Georgetown Law Journal have provided this valuable service to the legal community.

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Corn on Military Jury Sentencing

Geoffrey S. Corn (Texas Tech University School of Law) has posted Military Jury Sentencing Theory and Practice on SSRN. Here is the abstract:

 

Military jury sentencing is a highly regulated process designed to contribute to justice and good order and discipline in the armed forces. Military panel members are guided by procedural rules that contribute to fair and just outcomes while mitigating the risk of excessive punishments. Furthermore, the accused is offered substantial opportunity to bring before these court members substantial extenuating and mitigating evidence, to include the somewhat unique option of offering an unsworn statement. These procedures justify a high degree of confidence that military sentences are genuinely tailored to respond to the crime, the criminal, and the needs of society.

Wheeler on Screening Police for White Supremacist Affiliations

Jerron Wheeler (University of Florida Levin College of Law) has posted Defunding C.O.P.S.: Conditioning Federal Funding to State and Local Law Enforcement Agencies Upon the Implementation of a Program that Screens its Current and Future Officers for White Supremacist Affiliations  (University of Maryland Law Journal of Race, Religion, Gender & Class, Volume 23, Issue 1) on SSRN. Here is the abstract:

 

This article explores the pervasive issues of systemic racism within American law enforcement and proposes a federal intervention to help mitigate this threat. It highlights historical and contemporary instances of white supremacist affiliations among police officers, drawing from specific instances of racial violence. The article argues that Congress should use its Spending Clause power to condition federal grants, like the Community Oriented Policing Services (COPS) program, on the implementation of a comprehensive screening program for state and local law enforcement officers. This program would identify and exclude individuals with ties to white supremacist or far-right militant groups, aiming to enhance public trust and safety among diverse populations. By imposing financial penalties for non-compliance, the proposed legislation seeks to ensure rigorous enforcement and accountability. The article underscores the urgency of federal action to address this critical issue and restore faith in the nation’s policing institutions.

Cieply & Corn on Confessions Compelled by Foreign Coercion

Kevin Cieply and Geoffrey S. Corn (Ave Maria School of Law and Texas Tech University School of Law) have posted The Admissibility of Confessions Compelled by Foreign Coercion: A Compelling Question of Values in an Era of Increasing International Criminal Cooperation  on SSRN. Here is the abstract:

 

This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in that case, and the potential of that language in prohibiting the admission of evidence obtained by foreign official coercion. The Article concludes by calling on federal and state courts to exclude statements obtained under such circumstances and encourages Congress to end any uncertainty surrounding this issue by enacting appropriate legislation that prohibits the use of any evidence extracted by torture or by cruel, inhuman, and degrading treatment in criminal trials.

Sundquist on Immigration Status Evidence

Christian Sundquist (University of Pittsburgh - School of Law) has posted Immigration Status Evidence: Facilitating Juror Racial Bias Against Latinx Criminal Defendants on SSRN. Here is the abstract:

 

Dangerous political rhetoric demonizing migrants and racialized persons has altered social norms regarding the acceptability of racism while ushering in a new era of white nationalism across the world. The increasing normalization of racism has shaken bedrock American constitutional principles of equality and fair treatment under the law as it has become commonplace for courts to admit prejudicial evidence of a Latinx criminal defendant's lack of citizenship and undocumented immigration status in non-immigration proceedings. While many scholars have explored the modern criminalization of immigration ("crimmigration"), 1 and others have broadly identified how the criminal process can disadvantage non-citizen defendants, 2 this Article is the first to provide a critical analysis of the important constitutional and statutory issues raised by the admission of immigration status evidence against Latinx criminal defendants at trial and during sentencing.

Gutman on Exoneree Compensation

Jeffrey S. Gutman (George Washington University - Law School) has posted Compensation Under the Microscope: Michigan on SSRN. Here is the abstract:

 

The number of exonerees denied compensation in Michigan – 25 – is the third highest in the country, behind New York and California. As of this writing, there are 107 Michigan exonerees listed in the National Registry of Exonerations who have filed for state compensation. By comparison, of the 88 exonerees who filed in Ohio, only six have been denied. The purpose of this article is to analyze why the number of denials in Michigan is as high as it is. Part of the answer lies in a particularity of the Michigan compensation statute. The Michigan legislature is, however, considering significant amendments to the statute. This article considers the extent to which those amendments might change the outcomes in some of these 25 cases.

Graef et al. on Court No-Shows

Lindsay Graef, Sandra G. Mayson, Aurelie Ouss, and Megan T. Stevenson (University of Pennsylvania, University of Pennsylvania Carey Law School, University of Pennsylvania and University of Virginia School of Law) have posted Court No-Shows: A Systemic Issue on SSRN. Here is the abstract:

 

This white paper summarizes research presented in Graef et al., Systemic Failures to Appear in Court, 172 U. Penn. L. Rev. 1 (2023). The study shows that it’s not just defendants who fail to appear at required court dates. A police officer, civilian witness, or private attorney fails to appear in court in more than half of Philadelphia’s cases: twice as often as defendants. Each time an essential party fails to appear, the hearing must be rescheduled, wasting time and money for all involved. Moreover, when witnesses fail to appear, cases are more likely to be dismissed or withdrawn. Our results show that failure-to-appear (FTA) is a systemic phenomenon, one that is playing a central role in criminal case processing in Philadelphia.

Wallace-Wolf on The Problem with Self-Incrimination

Jordan Wallace-Wolf (University of Arkansas, William H. Bowen School of Law) has posted DOES THE PRIVILEGE AGAINST SELF-INCRIMINATION GUARD AGAINST A DISTINCT KIND OF MISCHIEF? on SSRN. Here is the abstract:

 

What's wrong with coercing a criminal defendant to provide self-incriminating testimony? The two most common answers focus on one of the two different "sides" of such coercion. One answer focuses on the defendant-their act of producing the incriminating information should not be coerced. A different answer focuses on the coercer-they are not entitled to the information that their coercion produces. I suggest and defend an overlooked third possibility. According to this answer, forcing someone to provide self-incriminating testimony is not wrong because it coercively brings about an act of production or the receipt of the corresponding product. Instead, the problem with coerced self-incrimination is that it uses the defendant's memory of doing something to hold him accountable for doing it. 

"Interesting D.C. Circuit Dissent Regarding Computer Monitoring for Jan. 6 Trespasser"

Eugene Volokh has this post at The Volokh Conspiracy. From his excerpt of the dissent:

As a special condition of supervised release, the court sua sponte ordered the probation office to monitor Goodwyn's computers for the transmittal of "disinformation" about January 6. To enforce this condition, the court further required the installation of software on Goodwyn's computers that would enable the probation office to conduct "periodic unannounced searches."

. . . 

Burroughs [a precedent case] involved criminal conduct much more serious and ongoing than the one-time, wrongful-entry offense that Goodwyn committed. If concern about Internet usage to commit future crimes or threaten others was insufficient to satisfy section 3583(d) in Burroughs, it is likely insufficient here as well. Moreover, the First Amendment significantly limits the government's ability to prohibit speech that is false, United States v. Alvarez (2012); speech that advocates the use of force, Brandenburg v. Ohio (1969); or speech couched as threats, Watts v. U.S. (1969) (per curiam). On this record, I doubt that the vague and broad prohibition on spreading "disinformation" about January 6 would survive First Amendment scrutiny under these standards, which recognize that the "language of the political arena … is often vituperative, abusive, and inexact."

Alkon on Negotiating Police Reform

Cynthia Alkon (Texas A&M University School of Law) has posted Negotiating Police Reform (Mississippi Law Journal, Vol. 93, No. 5, 2024, pp. 1053-72) on SSRN. Here is the abstract:

 

In the summer of 2020, after the murder of George Floyd, the national conversation around police reform intensified and was part of a conversation with students at Texas A&M University School of Law. Students wanted more discussion and teaching about police, police misconduct, police reform, and defunding the police. Following those discussions, I created a simulation on local level police reform that, as of this writing, I have used twice in my negotiation class. Simulations are helpful teaching tools in a variety of settings, including law schools. Simulations can be particularly useful to help students discuss difficult topics in different ways by putting students in roles that demand that they go beyond their own views and that they put themselves in the shoes of others. I wanted an exercise that would help students to discuss police reform, police funding, and the issues of race that are wrapped up in these topics in a different way. In this short essay, I will explain the simulation, how I have used it in class, how it can be used to stimulate discussion around police reform, and some of the lessons I have learned in terms of how to conduct and organize this simulation.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Stopping Scams Against Consumers: Roadmap for a National Strategy Nick Bourke Independent Date Posted: 24 Jul 2024 [4th last week]	176
2.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024 [3rd last week]	170
3.	Rights, Reasons, and Culpability in Tort Law and Criminal Law Gregory Antill Columbia Law School Date Posted: 27 Jun 2024 [7th last week]	123
4.	The New Outlawry Jacob D. Charles and Darrell A. H. Miller Pepperdine University - Rick J. Caruso School of Law and The University of Chicago Law School Date Posted: 10 Jun 2024 [8th last week]	100
5.	Drug Decriminalization, Public Health, and Crime: Evidence from Oregon Liam Sigaud, Elijah Neilson, Vitor Melo and Sebastian Anastasi George Mason University - Mercatus Center, Southern Utah University, Clemson University and Clemson University - John E. Walker Department of Economics Date Posted: 31 May 2024 [9th last week]	92
6.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024 [new to top ten]	78
7.	Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment Alexandra Giannidi University of Cambridge Date Posted: 25 Jun 2024 [new to top ten]	69
8.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024 [new to top ten]	68
9.	Double Counting in Capital Sentencing Statutes Sunayna Nair Columbia University - Columbia Human Rights Law Review Date Posted: 26 Jun 2024 [new to top ten]	68
10.	Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver in Criminal Cases Christopher Slobogin and Kate Weisburd Vanderbilt University - Law School and UC Law, San Francisco Date Posted: 17 Jun 2024 [new to top ten]	64

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Against Privacy Essentialism Daniel J. Solove George Washington University Law School Date Posted: 14 May 2024	732
2.	A Large-Scale Study of the Police Retention Crisis Ben Grunwald Duke University School of Law Date Posted: 26 Jun 2024	345
3.	Prosecutor Transparency Project: Racial Disparities Study (Washtenaw County, Michigan) Grady Bridges and J.J. Prescott Independent and University of Michigan Law School Date Posted: 31 Dec 2023	306
4.	Loper Bright and the Great Writ: Will the New Constitutionalists End "Treason to the Constitution," Restore the Judicial Power, and Make the Law of the Land Supreme Again? [Forthcoming in Columbia Human Rights Law Review, 2024] James S. Liebman and Anthony Amsterdam Columbia University - Law School and New York University School of Law Date Posted: 11 Jul 2024	243
5.	An Open Letter to Law Students on the Death Penalty Jesse Cheng and Helen Prejean DePaul University - College of Law and DePaul University Date Posted: 11 Jul 2024	170
6.	Minimal Rationality and the Law of Evidence Ronald J. Allen, Michael S. Pardo, William J. Lawrence and Christopher Smiciklas Northwestern University Pritzker School of Law, Georgetown University Law Center, Sidley Austin LLP and Northwestern University - Pritzker School of Law Date Posted: 11 Apr 2024	130
7.	The Paper Prisons Racial Justice Act Data Tool Colleen V. Chien, William A. Sundstrom, Akhil Raj, Bennett Cyphers and Rayna Saron UC Berkeley School of Law, Santa Clara University - Leavey School of Business - Economics Department, Santa Clara University, UC Berkeley School of Law and UC Berkeley School of Law Date Posted: 05 Jun 2024	105
8.	What Fischer v. United States Gets Wrong About Prosecutorial Discretion Cindy J. Cho Indiana University Maurer School of Law Date Posted: 26 Jun 2024	100
9.	Criminal Law's Hidden Consensus Steven Arrigg Koh Boston University School of Law Date Posted: 22 Jul 2024	78
10.	Punishing Gender Erin Collins University of Richmond School of Law Date Posted: 23 May 2024	68

Bernick on Abolishing Conspiracy

Evan D. Bernick (Northern Illinois University - College of Law) has posted Abolish Conspiracy on SSRN. Here is the abstract:

Conspiracy seems as American as apple pie. Every state makes it a crime to agree to and act in furtherance of a plan to accomplish an unlawful goal. There are dozens of federal conspiracy statutes in the United States Code. The crime of conspiracy is the darling of prosecutors across the political spectrum. It has been wielded against poor Black teens and White TV moguls; anti-carceral and anti-abortion activists; rap stars and a former President. Its hold on U.S. criminal systems is firm.  

This Article seeks to break that hold. The crime of conspiracy promotes surveillance of and violence against poor people of color. It is a menace to freedom of expression, the right of a criminal defendant to confront an adverse witness, and the rule of law. Its purported social benefits remain unsubstantiated; its social costs have been understated when they have not been outright ignored. And nothing about conspiracy’s past or present provides grounds for confidence that it can be reformed.

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Ball on Causal Inference Under the California Racial Justice Act

W. David Ball (Santa Clara School of Law) has posted MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT on SSRN. Here is the abstract:

 

In order to evaluate claims arising under the California Racial Justice Act (RJA), judges and attorneys need to learn how to draw inferences about racial disparity from data-and, equally importantly, to learn how to avoid drawing inaccurate inferences from data. The key questions in many RJA claims are, first, how to determine what constitutes "defendant[s] who have engaged in similar conduct and are similarly situated" and, second, what might supply race-neutral reasons for those disparities. In other words, how can practitioners learn to distinguish between permissible disparities driven by offender characteristics and conduct and impermissible disparities driven by factors the RJA seeks to eliminate: implicit bias, explicit bias, and structural factors? 
This Article seeks to provide judges and attorneys with such a guide.

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Conklin et al. on Vaping and Violent Victimization

Michael Conklin, Xiaochen Hu, and Jun Wu (Angelo State University - Business Law, Fayetteville State University and Angelo State University) have posted The Relationship Between Violent Victimization and Vaping: Results from Monitoring the Future (Volume 74 International Journal of Law, Crime & Justice (forthcoming)) on SSRN. Here is the abstract:

 

Previous studies found a positive relationship between prior violent victimization experience and substance use among adolescents based on general strain theory. However, there is limited knowledge on the link between violent victimization and vaping, which is a relatively new method of substance use. Therefore, the current study applies general strain theory to examine the relationship between violent victimization and vaping. Three types of vaping, nicotine, marijuana, and flavor only, are examined in correlation with violent victimization, utilizing data from the 2019 cohort of the Monitoring the Future study (MTF). The findings suggest that students with violent victimization experience are more likely to engage in vaping. Also, students with stronger negative emotions, weaker social bonds, and more unstructured time with peers are more likely to vape. The current study provides empirical evidence on using general strain theory to explain vaping behavior among students. Applicable policies are also discussed.

Slobogin on Colb on the Fourth Amendment

Christopher Slobogin (Vanderbilt University - Law School) has posted New and Newer Ways of Thinking about the Fourth Amendment on SSRN. Here is the abstract:

 

This article revisits two of the late Professor Sherry Colb’s Fourth Amendment articles, Innocence, Privacy and Targeting in Fourth Amendment Jurisprudence and The Qualitative Dimensions of Fourth Amendment “Reasonableness,” both of which were published in the 1990s. It explains why the insights Professor Colb proffered in these articles still provide refreshingly innovative ways of thinking about why the Amendment protects both the innocent and the guilty, the role of the exclusionary rule, how to deal with pretextual searches and seizures, and the relationship of the Amendment to substantive criminal law. It then explores the ramifications of Professor Colb’s work for Fourth Amendment remedies, stop and frisk practices, special needs searches, the debate over whether cause requirements should be calibrated to the seriousness of the crime and other, more recent search and seizure controversies.