CrimProf Blog

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

Tuesday, September 15, 2020

Holper on Electronic Monitoring

Mary Holper (Boston College - Law School) has posted Immigration E-Carceration: A Faustian Bargain on SSRN. Here is the abstract:
 
Immigration detainees and their advocates have a Faustian Bargain: they may trade the physical walls of jail for the virtual walls of electronic monitoring. But they are merely begging for a different form of punishment and control, since electronic monitoring imposes pain, shame, arbitrary rules, and limitation of freedom on persons, causing many to experience it as punitive. Its use also facilitates replacing a regime of over-detention with one of over-supervision, and becomes the means by which immigration enforcement authorities surveil immigrant communities. The Supreme Court’s immigration detention doctrine has set up this bargain by succumbing to the plenary power’s defenders. Instead of outright freedom, the Court has offered release under restrictive supervision policies utilized by the immigration authorities. Supervision through electronic monitoring has come to reside doctrinally in the middle ground between absolute freedom and incarceration. Yet as we have learned from electronic monitoring’s use in the criminal justice system, this “middle ground” ceded too much ground. This article explains, for the first time, how the Court’s immigration detention doctrine and perverse pull of the plenary power has carved out a doctrinal space where electronic monitoring now resides.

September 15, 2020 | Permalink | Comments (0)

Thusi on Beauty and Policing

I. India Thusi (Widener University - Delaware Law School) has posted On Beauty & Policing (Northwestern University Law Review, Vol. 114, No. 5, 2020) on SSRN. Here is the abstract:
 
“To protect and serve” is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers’ perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and serve us all.

This Article examines how police preserve racial and gender subordination in South Africa, an instructive analog for the United States because of both nations’ shared histories of racial apartheid and valorization of whiteness.

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September 15, 2020 | Permalink | Comments (0)

Cole & Scheck on Fingerprints and Miscarriages of Justice

Simon A. Cole and Barry Scheck (University of California, Irvine - Department of Criminology, Law and Society and Professor of Law, Cardozo Law School, Co Founder Innocence Project, Partner, Neufeld Scheck & Brustin) have posted Appendix to 'Fingerprints and Miscarriages of Justice: 'Other' Types of Error and a Post-Conviction Right to Database Searching,' (Albany Law Review, Vol. 81, No.3, 2017- 2018) on SSRN. Here is the abstract:
 
This Appendix gives one case example of each fingerprint error type discussed in Table 3 of the Article “Fingerprints and Miscarriages of Justice: ‘Other’ Types of Error and A Post-Conviction Right to Database Searching,” for which we know of an actual case. Cases were selected for recentness, novelty (not widely discussed elsewhere in the literature), and the degree to which they illustrate the problem we are discussing. In footnotes, we also list the other known cases of this error type.

September 15, 2020 | Permalink | Comments (0)

Monday, September 14, 2020

Bowers on Recidivism and Crime Licenses

Josh Bowers (University of Virginia School of Law) has posted What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life on SSRN. Here is the abstract:
 
We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly. In this article, I question that assumption and propose a radical alternative. Consider the individual punished repeatedly for hopping subway turnstiles. As convictions accumulate, sentences rise—to weeks and ultimately months in jail. At some point, criminality comes to signal something other than the need for punishment. It signals the presence of need. Perhaps, the recidivist was compelled by economic or social circumstances. Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one. No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences. My claim is that, in these circumstances, it would be better to just stop punishing.

To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists. But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution.

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September 14, 2020 | Permalink | Comments (0)

Ivandic et al. on Domestic Abuse During Lockdown

Ria IvandicTom Kirchmaier and Ben Linton (London School of Economics & Political Science (LSE) - Centre for Economic Performance (CEP), London School of Economics - Centre for Economic Performance and Metropolitan Police Service) have posted Changing Patterns of Domestic Abuse during COVID-19 Lockdown on SSRN. Here is the abstract:
 
The effects of preventing a COVID-19 health crisis have had unintended consequences on domestic abuse (DA) victimization. We contribute to the literature on domestic abuse in lockdown by providing insight on how changing patterns of domestic abuse can explain differences in magnitudes reported across studies. We examine the patterns of domestic abuse during the COVID-19 lockdown in Greater London and find that the lockdown changed the nature of reporting and the type of relationship the abuse occurs within. While abuse by current partners as well as family members increased on average by 8.1% and 17.1% respectively over the lockdown period, abuse by ex-partners declined by 11.4%. These findings show that reporting the average change in domestic abuse during lockdown can be misleading when designing a policy response. Moreover, we show that all the increase in DA calls is driven by third party reporting, particularly evident in areas with high density. This suggests that under reporting is present in the lockdown, particularly in households where the abuse cannot be reported by an outsider. Although these findings pertain to the COVID-19 lockdown, they also highlight the role that victim exposure and proximity has in affecting domestic abuse.

September 14, 2020 | Permalink | Comments (0)

Zabel on Public Surveillance Through Private Eyes

Joseph (Joe) Zabel (Stanford Law School) has posted Public Surveillance Through Private Eyes: The Case of the EARN IT Act and the Fourth Amendment (2020 U. Ill. L. Rev. Online 167) on SSRN. Here is the abstract:
 
A critical question (under the original or the amended statute) is whether the EARN IT Act deputizes Interactive Computer Service Providers (ICSPs) as outsourced private surveillance agents, such as to lay the groundwork for a springing Fourth Amendment violation. In that vein, this article proceeds in the following manner. First, it provides a brief explanation of Section 230 and the EARN IT Act. It then discusses the Fourth Amendment implications of the Act: 1) whether either iteration of the Act deputizes ICSP surveillance; 2) if it does, to what extent do individuals retain a reasonable expectation of privacy with respect to the content they post on ICSPs?; and 3) finally, are the actions “encouraged” by the EARN IT Act otherwise reasonable under the “special needs” exception to the Fourth Amendment?

September 14, 2020 | Permalink | Comments (0)

Sunday, September 13, 2020

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law

Rutgers, The State University of New Jersey - Department of Philosophy
166
2.

What We Got Wrong in the War on Drugs

University of St. Thomas - School of Law (Minnesota)
112
3.

Nuancing Feminist Perspectives on the Voluntary Intoxication Defence

University of Toronto, Faculty of Law
109
4.

"It Doesn’t Work!": The Symbolic Aspect of Law, From the Criminal Law to Bill 21

McGill University - Faculty of Law
85
5.

Valuing Black Lives: A Case for Ending the Death Penalty

Columbia Law School
84
6.

Making Sense of Risk

University of Wisconsin Law School
80
7.

#MeToo and the Myth of the Juvenile Sex Offender

Brooklyn Law School
61
8.

Invoking the Epidemic Diseases Act, 1897 in Light of the Epidemic Diseases (Amendment) Ordinance, 2020

University of Mumbai, Law Academy and University of Mumbai, Law Academy
52
9.

Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then

University of California, Los Angeles (UCLA) - School of Law
52
10.

Consent, Legitimation, and Dysphoria

Georgetown University Law Center
52

September 13, 2020 | Permalink | Comments (0)

Saturday, September 12, 2020

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Why Do Rule 48(a) Dismissals Require 'Leave of Court'?

University of Virginia School of Law
2,726
2.

A Few Bad Apples? Racial Bias in Policing

University of California, Los Angeles (UCLA) - Department of Economics and Dartmouth College
854
3.

An Abolitionist Horizon for (Police) Reform

Ohio State University (OSU) - Michael E. Moritz College of Law
417
4.

The Questionable Objectivity of Fourth Amendment Law

University of California, Berkeley School of Law
296
5.

How To Assess Whether Your District Attorney Is A Bona Fide Progressive Prosecutor

Harvard University
189
6.

Constructing Separate and Unequal Courtrooms

University of Wisconsin Law School
178
7.

Qualified Immunity's Boldest Lie

University of California, Los Angeles (UCLA) - School of Law
158
8.

Post-2013 Reforms of the Chinese Courts and Criminal Procedure: An Introduction

Institute of East Asian Studies, University of Cologne
115
9.

Crisis and Coercive Pleas

Rutgers, The State University of New Jersey - Rutgers Law School
110
10.

'Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia

New York Law School, Niagara University and Niagara University - Department of Criminal Justice
102

September 12, 2020 | Permalink | Comments (0)

Friday, September 11, 2020

Verstein on Mixed Motives Insider Trading

Andrew Verstein (University of California, Los Angeles (UCLA) - School of Law) has posted Mixed Motives Insider Trading (Iowa Law Review, Vol. 106, 2020) on SSRN. Here is the abstract:
 
If you trade securities on the basis of careful research, then you are a brilliant and shrewd investor. If you trade on the basis of a hot tip from your brother-in-law, an investment banker, then you are a criminal. What if you trade for both reasons?

There is no single answer, thanks to a three-way circuit split. Some courts would forgive you according to your lawful trading motives, some would convict you in keeping with your bad motives, and some would hand the issue to the jury. Sometimes called the “awareness/use” debate or the “possession/use” debate, the proper treatment of mixed motive traders has occupied dozens of law review articles over the last thirty years.

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September 11, 2020 | Permalink | Comments (0)

Hernandez & El-Sabawi on Defending Death by Distribution Cases

Cynthia Hernandez and Taleed El-Sabawi (Elon University School of Law and Elon University School of Law) have posted Defending Death by Distribution Cases in North Carolina: A Checklist on SSRN. Here is the abstract:
 
This checklist has been adapted from the “Drug-Induced Homicide Defense Toolkit” by Beety, et al., and the University of North Carolina School of Government blog post, “Defending Death by Distribution Cases”, by Phil Dixon. This checklist is meant to help criminal defense attorneys identify possible defenses to these new North Carolina DIH laws, but we do strongly recommend consulting the “Drug-Induced Homicide Defense Toolkit” and “Defending Death by Distribution Cases” for more in-depth analysis of the defenses presented here.

September 11, 2020 | Permalink | Comments (0)

Greenberg on Criminal Reform

Elayne E. Greenberg (St. John's University School of Law) has posted Adding Value to Conversations about Criminal Reform (ABA Dispute Resolution Magazine, 2020) on SSRN. Here is the abstract:
 
In February 2018, the Justice Center of the New York County Lawyers Association established a Plea Bargaining Task Force. The task force was charged with examining why factually innocent defendants in the New York metropolitan area plead guilty and with prescribing viable recommendations to remedy this injustice. This article highlights how the strategic design of the task force added value to the task force's work and furthered its mission.

September 11, 2020 | Permalink | Comments (0)

Carroll on Beyond Bail

Jenny E. Carroll (University of Alabama - School of Law) has posted Beyond Bail (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:
 
From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of money bail, reform movements have altered the landscape of pretrial detention. Yet little attention has been paid to the emerging reality of a post-money bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on non-monetary conditions of release. These non-monetary conditions can be problematic for many of the same reasons that money bail is problematic and can inject additional bias into the pretrial system.

In theory, non-monetary conditions offer increased opportunities for release over monetary bail and can be narrowly tailored to accomplish specific goals. Yet the proposition that such non-monetary conditions accomplish their purported goals is untested and unsettled. Pretrial release conditions are often imposed at the conclusion of a remarkably brief pretrial hearing and in a near rote fashion, with little or no evidence that the condition is necessary to avoid the risk or risks that fuel them. Defendants – many of whom are unrepresented at these hearings – may be ill-equipped financially or otherwise to comply with such conditions. Non-compliance may place defendants at risk of either additional criminal charges or future pretrial detention.

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September 11, 2020 | Permalink | Comments (0)

Starger on Pretrial Incarceration

Colin P. Starger (University of Baltimore - School of Law) has published The Argument that Cries Wolfish at the MIT Computational Law Report, which includes interactive and hyperlinked content. Here is the abstract from SSRN:

Mass pretrial incarceration can be understood via the following proposition: The presumption of innocence is dead and the Argument that Cries Wolfish helped kill it. This Essay explains that proposition using original empirical data and back-to-basics doctrinal analysis.

Every day in the United States, hundreds of thousands legal innocent defendants are locked behind bars. Though formally cloaked in the presumption of innocence (POI), this much-lauded principle fails, in pretrial hearing after pretrial hearing, to prevent unconvicted persons from suffering imprisonment. The result is a crisis of mass pretrial incarceration.

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September 11, 2020 | Permalink | Comments (0)

Guiora & Dyer on Bystander Legislation

Amos N. Guiora and Jessie E. Dyer (University of Utah - S.J. Quinney College of Law and S.J. Quinney College of Law) have posted Bystander Legislation: He Ain't Heavy, He's My Brother (29 Kan. J.L. & Pub. Pol’y 291) on SSRN. Here is the abstract:
 
In this article we address the bystander with a particular focus on legislating-criminalizing the bystander. In doing so we focus on bystander responsibility from the perspective of the individual in peril. Why and how the individual is in that condition is irrelevant to the recommendation that a duty to act be imposed on the bystander. The circumstances that directly, or indirectly, led to the distress are insignificant to the legal obligation to intervene on behalf of the person in immediate physical peril.

The bystander is the person who observes another individual in distress, knows of that person’s travail, and has the capability to act on their behalf. The bystander is present at the moment of another person’s acute need. The question is whether the bystander will act on behalf of that person or not act by choosing to walk away. Re-stated, will the bystander provide assistance or deliberately and knowingly ignore, thereby committing a crime of omission?

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September 11, 2020 | Permalink | Comments (0)

Thursday, September 10, 2020

Pascoe & Smith on Suspended Execution

Daniel Pascoe and Tobias Smith (City University of Hong Kong (CityUHK) - School of Law and San Francisco State University) have posted Suspended Execution Beyond China’s Borders (Asian Journal of Law and Society (2020 Forthcoming)) on SSRN. Here is the abstract:
 
Although China remains the world’s most prolific death penalty jurisdiction, it has also reportedly reduced executions in the 21st century. China achieved this reduction in part through use of a nominal capital sentence called ‘suspended execution.’ The success of suspended execution as a diversionary tool has produced calls for its introduction elsewhere. However, there has been no empirical research on suspended execution outside China. This article fills this gap by identifying neighboring countries where suspended execution proposals have been considered, determining why these countries considered it, and examining how proposals were structured. We identify four Asian jurisdictions—Taiwan, Japan, Vietnam and Indonesia. We find that all of these countries looked to China for inspiration, each did so independently, and for reasons unrelated to China’s death penalty reforms. Our findings provide insights about capital punishment in Asia, the appeal of suspended execution and the role of China in regional penal practice.

September 10, 2020 | Permalink | Comments (0)

Lilly on Venue and Crimes Aboard Aircraft

Nathan Lilly (Sandra Day O'Connor College of Law at Arizona State University) has posted The 'High Skies': Establishing Venue for Prosecutions of Crimes Aboard Aircraft (57 Crim L. Bull., no. 1, Forthcoming) on SSRN. Here is the abstract:
 
A fundamental concept in criminal procedure is that the trial must take place where the crime was committed. Without proper venue, a defendant cannot be found guilty of the charged crime. But where is venue when the crime is committed on an airplane traveling through the sky at 500 miles per hour? This article analyzes United States v. Lozoya, a 2019 decision from the Ninth Circuit Court of Appeals that broke from the conventional wisdom of the Tenth and Eleventh Circuits in holding that the proper venue is the federal judicial district over which the plane was flying at the time of the crime. No legal scholarship has ever considered criminal venue in this particular context. This article analyzes the two main federal venue statutes, 18 U.S.C. §§ 3237 and 3238, and argues that neither the Ninth Circuit approach nor the Tenth or Eleventh Circuit approaches view the law correctly. The most logical outcome — prosecution in the district in which the plane ultimately lands — is undisputed. But the plain meaning of the venue statutes supports the assumption that airplanes in the “high skies” are a lot like ships on the high seas. When the Ninth Circuit reconsiders this issue en banc in 2020, it can solve the problem by holding, for purposes of criminal venue, that American airspace is considered “outside of any district” and thus the prosecution can bring charges where the defendant is arrested (i.e. the landing district).

September 10, 2020 | Permalink | Comments (0)

Makhlouf on DNA Testing at the Border

Medha D. Makhlouf (Penn State Dickinson Law) has posted The Ethics of DNA Testing at the Border (46 American Journal of Law & Medicine 253 (2020)) on SSRN. Here is the abstract:
 
From 2018 to 2020, the U.S. government dramatically expanded DNA surveillance of immigrants. The most recent expansion, finalized in March 2020, effectively requires the collection of DNA from all immigration detainees and storage of their genetic information in the Federal Bureau of Investigation’s (“FBI”) Combined DNA Index System (“CODIS”) database for criminal forensic investigation. This new policy is ethically troubling because it fails to address the potential privacy harms it creates; shifts the application of DNA analysis for criminal investigation from retrospective to prospective assessment of criminality; and disparately impacts racial and ethnic minorities. In this time of extreme immigration policymaking, the expansion of DNA surveillance of immigrants should be recognized as an element of a larger project of dehumanizing immigrants and criminalizing immigration.

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September 10, 2020 | Permalink | Comments (0)

Cutler et al. on Expert Psychological Testimony in False Confession Cases

Brian L. CutlerJeffrey Neuschatz and Charles Honts (Ontario Tech University, Department of Psychology and Department of Psychology) have posted An Overview of Expert Psychological Testimony in False Confession Cases ((2020). The Champion, May, 30-35) on SSRN. Here is the abstract:
 
In this article we provide an overview of psychologists in false confession cases, including expert testimony on risk factors for false confession, psychological assessment, and the polygraph.

September 10, 2020 | Permalink | Comments (0)

Wednesday, September 9, 2020

Bandes & Feigenson on Virtual Trials

Susan A. Bandes and Neal Feigenson (DePaul University - College of Law and Quinnipiac University - School of Law) have posted Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom (Buffalo Law Review Vol. 68, No. 5, Forthcoming) on SSRN. Here is the abstract:
 
Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The covid-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice. These questions are not merely tangential – they implicate many of the core beliefs undergirding the U.S. system of justice, including the whole notion of “a day in court” as the promise of a synchronous, physically situated event with a live audience. Rather than regard virtual courts as just an unfortunate expedient, temporary or not, we use them as an occasion to reflect on the essential goals of the justice system, and to re-examine courtroom practices in light of those goals. We draw on social science to help identify what can be justified after the myths are pared away. Focusing on three interrelated aspects of traditional courts – the display and interpretation of demeanor evidence; the courtroom as a physical site of justice; and the presence of the public – we prompt a reassessment of what our legal culture should value most in courtroom adjudication and what we are willing to trade off to achieve it.

September 9, 2020 | Permalink | Comments (0)

Razook on Publishing Arrestees' Names Before Arraignment

Heather Razook (University of La Verne College of Law) has posted What's in a Name? A Proposal to Stop Publishing an Arrestee's Name Before Arraignment. (Journal of Law, Business, and Ethics, 26 J.L Bus. & Eth. 85) on SSRN. Here is the abstract:
 
This article demonstrates the need for a legally imposed standard through which it becomes taboo to release a person of interest’s name to media sources before he is charged with a crime. To begin, the United States must officially recognize an individual’s right to privacy. The right to remain private in one’s own affairs must be given equal weight to that of a free press. This is because an individual citizen deserves a means to defend himself and his reputation against prying eyes. Without a right or a law to lean back on, he cannot stand against a free press. Then, a statute must be passed that limits the government’s (mostly the police’s) ability to release the details of an arrest to the press. Until a defendant has been officially charged with a crime by the district attorney, the defendant’s name and personal information cannot be released to media sources by any party other than the defendant himself. Further restrictions may be placed on the flow of information at the discretion of the trial judge depending on the perceived risk to the defendant’s trial. By limiting the amount of information initially available to the media the media will become unable to legally print personal details. A private citizen can then fall back on the tort of public disclosure of private information to defend his reputation.

September 9, 2020 | Permalink | Comments (0)