CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, May 4, 2022

Pearl on The Fourth Amendment and Autonomous Vehicles

Tracy Hresko Pearl (University of Oklahoma College of Law) has posted The Fourth Amendment in the Age of Autonomous Vehicles (George Mason Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Autonomous vehicles exist at the intersection of two extremely turbulent areas of Fourth Amendment jurisprudence—traffic stops and emerging technologies—and have implications for virtually every major search and seizure doctrine developed over the last century. Complicating matters even further is the fact that car manufacturers are developing these vehicles at varying rates, meaning that vehicles with differing levels of automation are being introduced onto the consumer market at different (and often unpredictable) times. Each level of vehicle automation, in turn, poses unique issues for law enforcement. Semi-autonomous (Levels 2 and 3) vehicles make it extremely difficult for police to distinguish between dangerous distracted driving and safe use of a vehicle’s autonomous capabilities. Fully autonomous (Level 4 and 5) vehicles solve this problem but create another one: the ability of criminals to use these vehicles to break the law with an extremely low risk of detection. How and whether we solve these legal and law enforcement issues depends on our willingness to adapt or abandon a number of significant Fourth Amendment doctrines.

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May 4, 2022 | Permalink | Comments (0)

Kolber on The End of Liberty

Adam J. Kolber (Brooklyn Law School) has posted The End of Liberty (Criminal Law and Philosophy, vol.15, p.407-424 (2021)) on SSRN. Here is the abstract:
 
Theorists treat liberty as a great equalizer. We can’t easily distribute equal welfare, but we can purport to distribute equal liberty. In fact, however, nothing about “equal liberty” is meaningfully equal. To demonstrate, I turn not to familiar cases of distributing positive goods but to the distribution of a negative good, namely carceral punishment. Many theorists believe we should impose proportional punishment by depriving offenders of liberty in proportion to their blameworthiness. In this manner, equally blameworthy offenders are said to receive equal punishment when incarcerated for the same period of time. Equal periods of incarceration do not yield equal punishments, however, because liberty cannot serve as the great equalizer theorists hope for. Pretending it can prevents us from justifying the full harms of punishment or leads to such counterintuitive results that it makes proportional punishment an unattractive goal.

May 4, 2022 | Permalink | Comments (0)

Hardaway on Police Unions and the Black Freedom Movement

Ayesha Hardaway (Case Western Reserve University School of Law) has posted The Rise of Police Unions on the Back of the Black Freedom Movement on SSRN. Here is the abstract:
 
Police unions have garnered the attention of the media and some scholars in recent years. That attention has often focused on exploring the seemingly inexplicable power of police unions to shield problem officers from accountability as a matter of routine. This paper aims to explain that police union power did not surreptitiously arrive on the doorsteps of American cities. Instead, collective bargaining rights for law enforcement began to gain firm footing during the 1960s when the majority of white Americans were firmly committed to the preservations of their place in the nation’s racial hierarchy as it related to housing, jobs, education and entertainment. Existing legal scholarship has successfully highlighted the depth and breadth of modern-day union contracts and the undemocratic manner by which problematic provisions within those contracts have been negotiated. This article adds to that research by explaining how the social and political interests of both the electors and the elected merged with the demands of officers sworn to protect their specific interests.

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May 4, 2022 | Permalink | Comments (0)

Tuesday, May 3, 2022

Amoroso on CBRN-Related Violations

Alessandro Mario Amoroso (Scuola Superiore Sant'Anna di Pisa) has posted Criminal Repression of CBRN-Related Violations Which Do Not Amount to International Crimes (in de Guttry A, Frulli M, Casolari F and L Poli (eds), International Law and Chemical, Biological, Radio-Nuclear (CBRN) Events. Towards an All-Hazards Approach, Brill 2022, 599-618) on SSRN. Here is the abstract:
 
The purpose of this chapter is to give a comprehensive overview of international obligations concerning the criminal repression of CBRN-related violations which do not amount to international crimes. Indeed, while a number of CBRN-related violations may meet treaty and customary definitions of international crimes, international law requires States to criminalise and prosecute a broader range of CBRN events in their domestic legal systems. The first section provides some introductory remarks, proposing a taxonomy of applicable obligations and linking them to the different phases of the CBRN emergency management cycle. The second and third sections deal respectively with the two main obligations in this field, namely the obligation to criminalise and the obligation to prosecute. The analysis proves that obligations to criminalise aim at reinforcing the prevention of and preparedness against CBRN events, whereas obligations to prosecute govern the response to and recovery from CBRN-related violations. The fourth section turns to national implementation and sheds light on the consequences of the failure to criminalise and prosecute in terms of State responsibility, and specifically human rights responsibility for violations of the right to life.

May 3, 2022 | Permalink | Comments (0)

Chu on Fascist Influences on Chinese Criminal Law

 
The Chinese Nationalist Government established the Drafting Committee of Penal Code in 1931 and invited Attilio Lavagna, a judge at the Turin Court of Appeal in Fascist Italy, as legal advisor. The penal code was passed by the Chinese legislature in 1934, took effect in 1935, and is currently in force in Taiwan. This paper delves into Chinese and Italian archives to investigate possible Fascist legacies of Chinese criminal law.

Lavagna and other Italian scholars have claimed that the 1930 Italian Penal Code and Fascist legal principles influenced Chinese legislators. During his two years in China, Lavagna published in law journals, commented on penal code drafts, and lectured to legislators, judges, and scholars on Fascism. He highlighted three principles of Fascist law: power, order, and fairness, and reported to the Italian Ministry of Foreign Affairs that the Chinese audience was highly interested in exploring Fascism. Enrico Altavilla argued in 1938 that China had modeled after the Italian penal code in terms of territoriality, prohibition against analogy, security measures, subjective principles, and positive criminology theories. Historians of Sino-Italian relations have underscored Lavagna’s contribution to Chinese law.

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May 3, 2022 | Permalink | Comments (0)

Becker on Racial Bias and Prison Discipline

Katherine M. Becker (Queen's University Belfast) has posted Racial Bias and Prison Discipline: A Study of North Carolina State Prisons (North Carolina Central University Law Review 2022) on SSRN. Here is the abstract:
 
Black and Indigenous people receive disproportionate disciplinary writeups in the North Carolina state prison system. As a result, incarcerated Black and Indigenous people are more likely than their white counterparts to experience disciplinary sanctions, including solitary confinement.

In this Article, I analyze data from the North Carolina Department of Public Safety. I employ two statistical techniques—binary logistic regression and multiple linear regression—to explore racial disparities in the disciplinary process. I consider disparities in overall disciplinary outcomes and disparities at several discrete moments in the disciplinary process. I show that, holding other variables constant, a Black person incarcerated in North Carolina was 10.3% more likely than a similarly situated white person to receive at least one disciplinary write-up in 2020. An Indigenous person was 13% more likely than a white person to receive a write-up. On the other hand, Latinx people and people of other races were less likely than white people to receive write-ups. Because Black and Indigenous people received disproportionate write-ups, they also received disproportionate sanctions. For example, relative to white people, Black people were 8% more likely and Indigenous people 23% more likely to be subjected to disciplinary segregation—a punitive form of solitary confinement. Explicit and implicit racial biases likely explain these disparities.

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May 3, 2022 | Permalink | Comments (0)

Brooks on Punitive Restoration

Thom Brooks (Durham University) has posted Punitive Restoration (in Matthew C. Altman (ed.), Palgrave Handbook on the Philosophy of Punishment. Basingstoke: Palgrave Macmillan, forthcoming) on SSRN. Here is the abstract:
 
Restorative justice is highly promising as an effective approach to better support victims, reduce reoffending, and lower costs. The challenge it faces is a dual hurdle of limited applicability and lack of public confidence. The issue is how we might better embed restorative justice in the criminal justice system so its promising effectiveness could be shared more widely while increasing public confidence. This chapter explores the new approach of punitive restoration, which gives more tools for restoration including a wider punitive element. Its goal is to win support for greater use of restorative practices and a less punitive criminal justice system overall.

May 3, 2022 | Permalink | Comments (0)

Monday, May 2, 2022

Stetler on Horwitz on DSM

Russell Stetler has posted Book Review: DSM: A History of Psychiatry's Bible (Amicus Journal (cite as 42 Amicus Journal 48 (2021))) on SSRN. Here is the abstract:

This review summarizes Alan V. Horwitz's sociological history of the DSM and discusses the significance of the historical evolution of DSM diagnoses for criminal adjudications, especially in death penalty cases.

May 2, 2022 | Permalink | Comments (0)

Stetler on Mitigation in Death Penalty Cases

Russell Stetler has posted Death Penalty Keynote: Why Mitigation Matters, Now and for the Future (61 Santa Clara Law Review 699 (2021)) on SSRN. Here is the abstract:

This Article examines the current state of the death penalty in California and nationally through the lens of mitigation—the empathy-evoking evidence that has been a constitutional requirement to ensure individualized sentencing in the era of the modern American death penalty. It situates the discussion in the context of the extraordinary events of 2020: the COVID-19 pandemic, the heightened awareness of racial inequities reflected in the Black Lives Matter movement, and the federal execution spree in the final six months of the Trump administration.

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May 2, 2022 | Permalink | Comments (0)

Hessick et al. on The Prosecutor Lobby

Carissa Byrne HessickRonald F. Wright and Jessica Pishko (University of North Carolina School of Law, Wake Forest University - School of Law and Independent) have posted The Prosecutor Lobby (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Prosecutors shape the use of the criminal law at many points during criminal proceedings, but there is also an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in the legal literature is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all 50 states, we analyze how often prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded.

Our data tell a complex story of partial success for the prosecutor lobby. Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform. By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature. We further conclude that perceived expertise does not drive prosecutorial lobbying success, and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists.

May 2, 2022 | Permalink | Comments (0)

Obasogie & Zaret on Qualified Immunity and Excessive Force

Osagie K. Obasogie and Anna Zaret (Haas Distinguished Chair and Professor of Law, University of California, Berkeley School of Law (joint appointment with the Joint Medical Program and School of Public Health.) and University of California, Berkeley, School of Law - Jurisprudence and Social Policy) have posted Plainly Incompetent: How Qualified Immunity Became an Exculpatory Doctrine of Police Excessive Force (University of Pennsylvania Law Review, Vol. 170, No. 2, 2022) on SSRN. Here is the abstract:
 
Recent instances of law enforcement killing community members and ensuing social movements have increased public attention on the issue of police use of force and the lack of officer accountability. Qualified immunity has been central to this discussion because the doctrine is often used to shield officers from civil lawsuits when plaintiffs bring constitutional tort claims under 42 U.S.C. § 1983.

The traditional understanding of qualified immunity as applied to excessive force cases is that it tracks the history of the doctrine itself. It is widely accepted that the doctrine began to thwart excessive force claims against police right after it emerged for the first time in 1967 with Pierson v. Ray—a false arrest case that created a subjective good faith defense for some § 1983 claims. Most assume this influence continued as qualified immunity took on its modern form in 1982 with Harlow v. Fitzgerald—an executive privileges case that created an objective qualified immunity test relative to clearly established law. With this standard narrative, it is largely thought that these early cases on qualified immunity in the contexts of false arrests and executive branch privileges naturally, immediately, and seamlessly became a significant constraint on plaintiffs’ § 1983 excessive force claims against police officers.

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May 2, 2022 | Permalink | Comments (0)

Craig on the "Rough Sex Defence"

Elaine Craig (Dalhousie University) has posted The Legal Regulation of Sadomasochism and the So-Called 'Rough Sex Defence' ((2021) 37 Windsor Y B Access Justice) on SSRN. Here is the abstract:
 
The focus of this article is on the judicial application of Canada’s sexual assault doctrine in the context of the so called ‘rough sex defence’. Canadian criminal courts have seen an increased prevalence of legal narratives about S/M in recent years. In particular, courts are increasingly confronted with individuals who defend themselves against allegations of sexual assault by claiming that the impugned acts constituted consensual S/M or ‘rough sex’. The analysis is aimed at illustrating the way in which courts may fail to properly apply legal doctrine because of a problematic approach to the S/M context in which allegations arose.

May 2, 2022 | Permalink | Comments (0)

Sunday, May 1, 2022

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Police Brutality as Torture

University of the Pacific - McGeorge School of Law
420
2.

How To Fix Section 230

University of Virginia School of Law
382
3.

Dealing with Dead Crimes

Independent
243
4.

What Makes a Sex Crime? A Fair Label for Image-based Sexual Abuse

University of Oxford
201
5.

The Trouble with Time Served

University of Pennsylvania Carey Law School
183
6.

Does Mens Rea Matter?

Arnold Ventures, Arizona State University, Sandra Day O'Connor College of Law, RAND Corporation and Independent
161
7.

Self-Defense Exceptionalism and the Immunization of Private Violence

SMU Dedman School of Law
122
8.

Social Trust in Criminal Justice: A Metric

Northwestern University - Pritzker School of Law and Bar-Ilan UniversityUC Berkeley School of Law
106
9.

The Law Enforcement Lobby

Australian National University, School of Politics and International Relations and Loyola University Chicago School of Law
106
10.

Decarceration’s Inside Partners

University of Pennsylvania - Carey Law School
98

May 1, 2022 | Permalink | Comments (0)

Saturday, April 30, 2022

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

'Ruined'

Tulane University Law School
677
2.

The Fourth Amendment and General Law

Washington University in St. Louis - School of Law and Washington University in St. Louis - School of Law
453
3.

Police Brutality as Torture

University of the Pacific - McGeorge School of Law
420
4.

Dealing with Dead Crimes

Independent
243
5.

The Trouble with Time Served

University of Pennsylvania Carey Law School
183
6.

Courts Without Court

American University Washington College of Law
165
7.

The Fourth Amendment Without Police

Campbell University - Norman Adrian Wiggins School of Law
139
8.

Charging Time

Southern Methodist University - Dedman School of Law and Tulane University - Law School
127
9.

The Unconstitutional Police

Washington and Lee University - School of Law
127
10.

The Just Prosecutor

Washington and Lee University - School of Law
126

April 30, 2022 | Permalink | Comments (0)

Friday, April 29, 2022

Zaia on Entrapment in the Virtual Space

Mathew Zaia has posted Scraping in Cyberspace: Police Entrapment in the Virtual World ((2022) 26:3 Canadian Criminal Law Review (Forthcoming)) on SSRN. Here is the abstract:

The Supreme Court of Canada will soon consider entrapment in the virtual space in four companion cases: R v Ramelson, R v Haniffa, R v Dare, and R v Jaffer. This paper suggests that the Court should strike while the proverbial iron is hot and provide a detailed review of how to define, assess, and engage with the virtual space—and different types of virtual spaces—for the purpose of entrapment. Part II of the paper provides a brief historical backdrop of the entrapment doctrine and summarizes recent Supreme Court jurisprudence dealing with virtual entrapment. Part III then outlines the factors that the Court ought to consider in determining how to deal with bona fide inquiries in the virtual space. Finally, the paper proposes a framework of analysis for the Court to consider as it looks to provide direction on entrapment in the virtual space.

April 29, 2022 | Permalink | Comments (0)

Carbado & Feingold on Rewriting Whren

Devon W. Carbado and Jonathan Feingold (University of California, Los Angeles (UCLA) - School of Law and Boston University School of Law) have posted Rewriting Whren v. United States (UCLA Law Review, Vol. 68, 2022) on SSRN. Here is the abstract:
 
In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that the Court’s hands were tied.

This Article argues otherwise by offering an alternative Supreme Court opinion that could have decided the case.

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April 29, 2022 | Permalink | Comments (0)

Robinson on Ecocide

Darryl Robinson (Queen's University - Faculty of Law) has posted Ecocide - Puzzles and Possibilities (Journal of International Criminal Justice) on SSRN. Here is the abstract:
 
Popular interest in a new crime of ‘ecocide’ has recently surged. The proposed crime seeks to more strongly repudiate the most egregious environmental wrongdoing, complementing other efforts to curb ongoing environmental destruction. In June 2021, an international panel proposed a definition of ecocide. Initial academic commentaries, many of them critical, reflect entirely understandable first reactions. However, combining international criminal law (ICL) and environmental law raises fascinating new issues that are not initially obvious. These challenges may require a reappraisal of initial reflexes of ICL jurists.

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April 29, 2022 | Permalink | Comments (0)

Funk on Provocative Acts, Self-Defense, and the Rittenhouse Case

T. Markus Funk PhD (University of Oxford, University of Colorado School of Law) has posted The Rittenhouse Case - Misunderstanding when Provocative Acts Bar Self-Defense on SSRN. Here is the abstract:
 
Former federal prosecutor T. Markus Funk says the trial of Kyle Rittenhouse pushed the self-defense and provocation legal standards into the spotlight like no other case in recent history. He argues that critical legal and strategic errors (or, perhaps, intentional omissions) by the prosecution team, almost completely unnoticed by the media and their legal experts, caused the case to derail as soon as it began.

April 29, 2022 | Permalink | Comments (0)

Thursday, April 28, 2022

Funk and Volokh on Comparative Self-Defense Law

T. Markus Funk PhD and Eugene Volokh (University of Oxford, University of Colorado School of Law and University of California, Los Angeles (UCLA) - School of Law) have posted U.S. Self-Defense Law - 'Harsh' By International Standards? (Bloomberg Law Insights 2022) on SSRN. Here is the abstract:
 
The Kyle Rittenhouse murder trial uniquely spotlighted U.S. self-defense law, say former prosecutor T. Markus Funk, a partner at Perkins Coie, and UCLA School of Law professor Eugene Volokh. Using laws in England and Germany as examples, they explain that U.S. self-defense law is, by international comparison, far more restrictive than many in the legal and media communities recognize.

April 28, 2022 | Permalink | Comments (0)

Offit on Batson and the Anthropology of Law

Anna Offit (Southern Methodist University - Dedman School of Law) has posted Antidiscrimination Law Through a Sociolegal Lens (73 Alabama Law Review 4 (2022)) on SSRN. Here is the abstract:
 
This Symposium invites reflection on whether the Anthropology of Law has “any space left for the content of rules” at a time when the concerns of legal anthropologists have largely shifted to processes, materials, and practices that are “adjacent to law.”[1] Taking the jury system as an illustrative case, this Essay advocates for the relevance and value of the anthropological study of rules, their content, and their effects. Looking in particular at antidiscrimination rules derived from Batson v. Kentucky,[2] decided in 1986, it argues that a sociolegal, ethnographic approach to how lawyers perpetuate discrimination in jury selection offers insight into everyday legal practice that is critical to enacting impactful jury reform—that is, to making better rules.

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April 28, 2022 | Permalink | Comments (0)